LAW SOCIETY
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V> £nääÊxäÊäÎ{ i> iµÕÀiÃJÜiÃÌ>Ü°i ÀÊÛÃÌ ÜÜÜ°ÜiÃÌ>Ü°i PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE JAN/FEB 2009 A cool head and a calm voice
s this is my first message of the New Year, I do with a simpler existence and a chance to redress the thought it might be useful to give you some work/life balance. As one legal owl put it: “You can only feedback from your own colleagues. Having sleep in one bed at a time, wear one suit at a time, eat one spoken to many of you, some consistent meal at a time.” Athemes have emerged. There is a sense of It is not all doom and gloom, and there are certain bewilderment at the pace and scale of the recession – areas of work that continue to remain buoyant. We there is no point in avoiding the ‘R’ word now. This has in the Law Society continue to encourage you to take naturally given rise to much anxiety about the coming the opportunity to broaden your skills and to make the year. necessary adjustments in your practice. It has been very tough for many It is comforting that over 1,000 of you practices, particularly those dependent “Your skills and availed of the free CPD online seminar on conveyancing, although there has expertise can be on practice management in December. been some unhelpful and ill-informed Your skills and expertise can be of comment about how this has impacted of vital assistance vital assistance to your clients, who are on individual firms. Certainly, many to your clients who looking for a cool head and a calm voice. firms have had to shorten working There is a golden opportunity to spend hours or reduce pay (and this applies are looking for a some quality time with your clients from the top down). Notwithstanding cool head and a and listen to their problems. Go out such measures, it seems inevitable of your way to ratchet up your level of that there will be a substantial level of calm voice” service. Look for ways to improve your unemployment within the profession communications, responsiveness and in the coming year. knowledge of their business. This will Most firms recognise the importance of retaining well- repay you quicker than anything else. trained and motivated staff and, in fairness, most employ- People are looking for leadership and, within your ees have understood that these are unprecedented times community, you must lead by example and project a and have taken pay cuts and shorter hours on the chin. realistic yet positive outlook. Together, we will beat this As we ponder about how this all happened, it is recession. important to acknowledge that we have come a long way and we must avoid the temptation to write off, as negative, John D Shaw all that we have just gone through. Most of us can make President
www.lawsocietygazette.ie 1 LAW SOCIETY GAZETTE JAN/FEB 2009 CONTENTS
On the cover LAW SOCIETY When it rains, it pours – but they say it’s darkest just before the dawn. And when the ill winds of economic change blow nobody any good, all practitioners should Gazette welcome advice on honing the cut of their jib Jan/Feb 2009
PIC: REX FEATURES
Volume 103, number 1 Subscriptions: €57 REGULARS 1 President’s message 4 News Analysis 10 10 News feature: Human Rights Festival 12 News feature: Disciplinary Tribunal: role and functions 14 Human rights watch: procedural safeguards and evictions 14 One to watch: European orders for payment Comment 17 17 Letters 5 18 Viewpoint: PIAB and the O’Brien decision 41 People and places Obituary 44 Sir John Mortimer 45 Student spotlight Book review 46 Inheritance & Succession: the Complete Irish Guide Briefing 47 47 Council report, 4 December 2008 48 Practice notes 10 51 Legislation update: 18 Nov ’08 – 19 Jan ’09 55 Solicitors Disciplinary Tribunal 59 Firstlaw update 61 Eurlegal: family reunion and EU citizenship 64 Professional notices 69 Recruitment advertising Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Valerie Farrell, Marsha Dunne. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 65. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Michael Kealey, Mary Keane, 43 Aisling Kelly, Patrick J McGonagle, Ken Murphy.
2 www.lawsocietygazette.ie CONTENTS LAW SOCIETY GAZETTE JAN/FEB 2009
Get more at lawsociety.ie PROFESSIONAL NOTICES: send small advert details, with payment, to: Gazette Offi ce, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including Practice details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Management Task Force/CPD Focus ‘survival HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. skills’ seminar, 27 February Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • Employment opportunities • The latest CPD courses FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org … as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org FEATURES COVER STORY: 20 Batten down the hatches The economy has hit a rough patch, and many practitioners are extremely concerned about steering their firms through 2009. David Rowe suggests steps to take to recession-proof firms Performance anxiety 24 There has been an increase in claims before the courts to compel reluctant purchasers to close on sales agreed in better times. Two recent decisions offer an insight to how the courts are treating such claims, writes Niamh Herron Managing to pull through 28 It was a tough year for many firms, and 2009 is unlikely to be much easier. For many, survival will be an issue – but survival will be much easier for those with effective leadership and management, writes Andrew Otterburn Dumb witness 30 The role of experts in the investigation and prosecution of 30 criminal offences is an important one, and the Law Reform Commission has recently turned its attentions in this direction. Yvonne Daly hunts for trace Nobody expects the Spanish Inquisition! 34 While the job specifications and skills required depend on the position you’re going for, Neil Connolly and Aoife Coonagh say the mistakes people make at interviews are common to all On the front line 37 In part 2 of his interview, Colin Murphy talks with the Chief Inspector of the Garda Inspectorate, Kathleen O’Toole, about ‘less lethal’ weapons, ‘barricade incidents’, and the importance of seeing uniformed gardaí ‘out on the front line’
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 34
www.lawsocietygazette.ie 3 LAW SOCIETY GAZETTE JAN/FEB 2009 NEWS nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
WATERFORD are still available from Jerry At Waterford Law Society’s Cronin. Mortimer is happy also well-attended AGM before to promote the SLA annual Christmas, Bernadette Cahill conference, which will take place succeeded Morette Kinsella as in Lisbon in September. Two, president. Other officers three and five-day options are appointed: Elizabeth Dowling available at very competitive (secretary); Deirdre McSweeney prices. (treasurer); committee members: Forthcoming CPD courses in Helen Bowe O’Brien, Kieran Cork will be provided soon on Curran, Rosa Eivers, Fiona Fitz- accounts regulations (Seamus gerald, John Goff Jnr, Jim Hally, McGrath of the Law Society) and Niall King, Morette Kinsella, Patricia Harney on client care. Tom Murran, Derry O’Carroll, Paul Twohig and Jill Walsh. DUBLIN Morette Kinsella presented At the recent Southside Solicitors’ Dinner, held in the Royal St George Almost 300 colleagues attended a new constitution to the Yacht Club, Dun Laoghaire, on 16 January 2009 were (l to r): Dominic the DSBA’s annual ball in the Dowling, Kevin O’Higgins (president of the DSBA), Ruth Dowling and members, which was adopted. third week in January. Geraldine President of the Law Society John D Shaw Referring to the effect of Kelly organised the sterling the recession on members, of the Courts Service, PJ Fitz- Wednesday of the month in event and negotiated ticket Bernadette Cahill commented: patrick, performed the launch as Castlebar. prices at a 25% mark down “One of my priorities will be the last task of his tenure. The bar association is to be compared with last year – with to focus on, and enhance, the lauded for its recent survey of no impact on quality! Guests sense of collegiality and maintain MAYO practitioners throughout the of honour included Attorney a strong sense of community Poor Dermot Hewson – county, in which colleagues’ General Paul Gallagher, within the legal profession.” hardly a wet week in his new views on professional indemnity President of the Law Society position as president of the cover and other matters were John D Shaw, director general MIDLANDS bar association, when already sought. The effort was co- Ken Murphy, and leader of Fine President of the Midland Bar he has the headache of the ordinated by James Cahill. Gael Enda Kenny TD. Association Charlie Kelly Courts Service moving all The recent DSBA seminar congratulates Michael Byrne business out of Ballinrobe to CORK on ‘Insolvency and specific (partner in the firm of Hoey and Castlebar, on a temporary basis. Busy times down south for the performance’ proved very Denning), Tullamore, on the The reason for doing so was newly installed, cricket-loving popular. Lisa Broderick (MOP) launch of his book Legal Offaly. attributed to poor facilities and president of the SLA, Mortimer and Barry O’Neill delivered Says Charlie: “It’s a work of a pending review of security Kelleher. He recently yo-yoed papers in this burgeoning area. great scholarship and research arrangements. For practitioners from Cork to Dublin for a black- Further seminars in the coming and will prove to be a great from Ballinrobe, and not least tie event on a Thursday evening, month will include a review of resource book for research their clients, this is a round trip attended the Law Society PIAB in the light of the O’Brien students and those interested of 44 miles. The decision must Council meeting the following decision. (See page 18 of this in the development of the legal be a disappointment for the local day, belted back to Cork for an Gazette.) Consult www.dsba.ie. system in a rural county from bar association, who fought hard insurance institute dinner that The irrepressible Justin 1850 onwards. It’s not a book to retain sittings in Ballinrobe evening, was back in Dublin for McKenna pulled together 100 full of dry facts but is rich in and Ballyhaunis, as a result of the DSBA dinner-dance on the colleagues practising on the anecdotes and many colourful the realignment of District Saturday night, and wended his south side of the county for the reports of court cases extracted Court areas. An early challenge way back to Cork on Sunday annual Southside Solicitors’ from the local papers at the for Dermot, then, and I have no for another black-tie event. bash. Judge Paul Gilligan was time.” doubt he’ll rise to it. Do colleagues now realise and the special guest. Despite the The book was launched at a Following the recent tax appreciate the efforts we go to in gloom, life goes on. G special function in Tullamore, CPD seminar, more courses representing them?! attended by a large turnout, will take place on a monthly The annual dinner takes ‘Nationwide’ is compiled by Kevin including Judge Anthony basis throughout the year, place on 20 February, as usual O’Higgins, principal of the Dublin Kennedy. The retiring CEO generally occurring on the third in the Maryborough. Tickets law fi rm Kevin O’Higgins.
4 www.lawsocietygazette.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2009 Regulation relocation ‘of much significance’ says Justice Minister ery impressive” is how standing of the profession is “VJustice Minister Dermot upheld.” Ahern described the Society’s Also speaking at the opening new Regulation premises when ceremony, President John D he spoke as guest of honour Shaw said: “For some time now, at their formal opening on 2 it has been evident to us that December. we were running out of space The Regulation Department’s in Blackhall Place, and we also move to a leased floor of a lacked some of the efficiencies new, modern office block in which come with a modern George’s Court, near Smithfield office environment. It was and some four minutes’ walk therefore decided to relocate the from Blackhall Place, had been entire Regulation Department achieved on time and on budget to these new offices, and the the previous day. move represents a significant All of the Society’s regulatory investment by the Law Society activities, including regulatory in the continuing improvement committee meetings, are now (Left to right): Director General Ken Murphy, Director of Regulation of its regulation process.” based in George’s Court – not John Elliot, Minister for Justice, Equality and Law Reform Dermot Ahern TD Director general Ken Murphy in Blackhall Place – following and President John D Shaw said that the move reflected the a move that the Law Society contribution to the development Society’s modernising approach Council decided last year would of this bill and has been a strong and desire for ever-increasing have major benefits both for supporter of the government’s efficiency in all of its activities. the profession and the public approach. The profession as a He paid tribute to the Society’s it serves (see November 2008 whole will benefit from these director of regulation, John Gazette, p9). significant reforms. When Elliot; the director of finance The minister described the rights of individual clients and administration, Cillian the relocation as “of much are protected and the high MacDomhnaill; and all others significance”. He continued: standards applied by solicitors involved in ensuring that this “Not only does the move entail who approach their work with complex project had been a geographical departure from integrity and professionalism delivered on time and on budget the venerable premises which are safeguarded, the general Tour of inspection in just six months. the Law Society has occupied for 30 years, but it also reflects, in a very transparent way, the strategic and necessary separation of the regulatory and representative functions of the Society.” He noted that this move coincided with the government decision that there be a non- solicitor majority on the Society’s Complaints and Client Relations Committee with effect from 1 January. In addition, the bill to create a Legal Services Ombudsman has completed committee stage in the Dáil and is due to be enacted early in 2009. The minister continued: “I am gratified that the Law Society has made a very positive Regulation Department staff in the new George’s Court premises
www.lawsocietygazette.ie 5 LAW SOCIETY GAZETTE JAN/FEB 2009 NEWS Council approves careers advisor to assist job-seeking solicitors
he Law Society Council has a duty to do whatever it can service will not find employment Thas unanimously approved to be of support and practical in the solicitors’ profession, a proposal that the Society assistance to these colleagues. either in private practice or create a new position of ‘careers “These solicitors remain in-house, and must prepare advisor’ to assist job-seeking every bit as much part of the themselves to change careers. solicitors. profession as those who are In addition to offering such a The proposal was made in practice. The Society must service to the existing members by the director general, Ken rise to the challenge of being of the profession, there is likely Murphy, and was accepted at the relevant to these colleagues to be a demand from those who 23 January Council meeting. who need assistance from it as are currently trainees and due to The Council recognised that never before. Obviously, the qualify in the near future. the world in general, and Ireland Society cannot manufacture or The skill-set of the new in particular, has witnessed an find jobs for anyone,” Murphy careers advisor, who in all economic deterioration of very said. “What we can do, however, likelihood will not be a solicitor, shocking speed and severity. is help to equip colleagues will include the skills typically One of the deeply distressing with the information and Ken Murphy: “We can help to found in an experienced consequences of this has been skills to find employment for equip colleagues with the provider of ‘out-placement’ the emergence of a situation in themselves.” information and skills to find or ‘talent-management’ type recent months in which many It is intended that the new employment for themselves” services. One of the first tasks hundreds of solicitors are now careers advisor will assist will be to create a database of unemployed. Some of these are unemployed solicitors with career find employment in other walks those to whom the service might many years’ qualified and others assessment and direction; career of life. be relevant. are solicitors newly arrived on and life-coaching, providing the It would seem, very regret- The position has now been the roll. The number is more skills for realistic self-assessment; tably, that – in the short term advertised nationally and the likely to increase than reduce in CV preparation; interview advice at least – a great many of the recruitment process will be the foreseeable future. and ongoing support; financial solicitors who might avail of this completed as soon as possible. Very understandably, a great planning; psychological support many of these solicitors are to help with morale issues; shocked, bewildered and deeply information about requirements SUPREME COURT SUCCESS distressed to find themselves in for legal qualification in other “A very successful outcome,” is how director general Ken Murphy this predicament. As Murphy jurisdictions; hard information described the Supreme Court decision of 19 December 2008, in put it to the Council, “The pain (by contrast with rumour) about O’Brien v PIAB. The Law Society had acted as amicus curiae, making in the profession is very real, the state of the legal services detailed submissions and arguments both in the High Court and the substantial and growing.” marketplace; and advice on how Supreme Court. Council fully accepted the to capitalise on the transferable The Supreme Court unanimously upheld the judgment delivered proposition that the Society skills of a solicitor in order to by Mr Justice MacMenamin in the High Court in January 2005 (see p18 of this Gazette). “The right to legal representation was at the core of this case,” Late stamping without tears said Murphy. “It was vitally important that the Society helped ensure ny deed or other instrument The Society urges every its protection.” Athat has not been stamped practitioner to check whether on time, regardless of how out- they have any deeds or of-time that now may be, can instruments that would benefit be stamped without penalty from this opportunity for 777 new solicitors in 2008 until 17 February 2009 under a penalty-free late stamping and, if record 777 new solicitors the roll in late 2008, rather than special provision in the recent so, to arrange for that stamping A were admitted to the roll wait, as would have been the Finance Act. to take place before the deadline. in the calendar year 2008. This normal pattern in the past, until This is a significant The Society sought compares with 642 in 2007, 536 the early months of 2009. concession. Late stamping clarification on how this regime in 2006 and 420 in 2005. Partly as a consequence normally requires payment of a will operate and this has resulted The 777 figure was probably of this, it is expected that the very substantial level of penalty. in Revenue eBrief 5/2009 inflated somewhat by an number of new solicitors in The penalty can involve a (available at www.revenue.ie/ apparent rush of newly-qualified 2009 will be lower, although surcharge of as much as 30% of en/practitioner/ebrief/2009/ solicitors to complete the not much lower, than the record the duty payable. no-052009.html). paperwork required to go on figure for 2008.
6 www.lawsocietygazette.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2009 Sharpen your survival skills! s the president has pointed grow our practices at this time. Aout in this month’s A review of the international ‘President’s Message’, the literature on this subject number-one concern for legal emphasises two key messages: practices is how best to manage • First and foremost, our clients the challenges presented by the are also experiencing great global financial crisis, writes difficulty and, by continuing James MacGuill. The Society to deliver first-rate services aims to provide assistance in to them at this time, we will meeting these challenges in strengthen and develop the a collegiate fashion through client relationship, which is at the activities of the Practice the centre of successful legal Management Task Force practice, (PMTF). • Secondly, where circumstances While we do not permit, this is the time to underestimate the challenges continue to invest in training facing individual practices, and, in particular, trainees. equally we can draw from The universal experience domestic and international Sniper training: not usually a survival skill that your average in the past is that firms that solicitor needs experience, both past and recent, continue to develop their skill to identify constructive steps time for the Society and the bar seminar, and through sets are those that survive and that can be of assistance at this associations to provide support engagement throughout the prosper. difficult time. The challenges and, through an exchange of country, and particularly with the facing each practice are different, experience and ideas, to identify bar associations, to underline the All of us on the PMTF hope to and there is no ‘one size fits all’ solutions. key messages of the Society at see or hear from you in the near solution. There are of course this time. Defeatism has simply future. For those who attend on available, both through the ‘Survival Skills’ seminar nothing to offer and, equally, 27 February, we hope it will kick- Gazette and elsewhere, first-rate To this end, the PMTF is nothing will be turned around start a weekend where England source materials on practice hosting a ‘Survival Skills’ by platitudes. We need to take maintains its 100% record in management. Equally, there are seminar on Friday 27 February. concrete steps to strengthen and Croke Park! skilled professionals available The half-day (afternoon) to assist practices either in seminar will address a range crisis or seeking to avert crisis. of disciplines relevant to The PMTF intends to act as practice in 2009, including Drafting wills for elderly a conduit to communicate business management, developing trends and exciting financial management, practice clients – the pitfalls initiatives and, critically, to development, and employment ollowing the publication of client to understand the many listen to colleagues about their law – but most importantly will Fthe practice note on joint issues involved so that they concerns so that we may identify give an opportunity to colleagues bank accounts in the December can communicate their wishes assistance that is timely and who attend to raise their own Gazette, the Guidance and and give full and competent appropriate. questions and to identify further Ethics Committee, which is instructions. It is a truism that ‘a problem areas of activity for the task currently reviewing guidance Margaret Walsh, a member shared is a problem halved’ but, force. Work is already in hand for solicitors when dealing with of the committee, points out: in the context of our current in developing further seminars elderly clients, is now publishing “There can be little doubt, on difficulties, it is extremely to explore some of these areas in the second practice note in this a reading of the relevant case apposite. Too often, colleagues greater detail. series (see p48.) law, that the duty of care which with practice difficulties In recognition of the current The task of drafting a will for solicitors have towards their feel lonely and isolated and difficulties facing practices, the an elderly client might involve clients when making wills is overwhelmed by a feeling that Society has underwritten, to a more pitfalls than practitioners more onerous when acting for a their difficulties are unique. The substantial degree, the cost of realise. The issue of capacity vulnerable and elderly client. If reality of the present situation providing the seminar, which is is of crucial importance. The the testator client is vulnerable, is that we are all feeling pain, now heavily subsidised. Booking client must have testamentary whether through frailty or other but that if we act in a collegiate details are available on the capacity, not only at the time circumstance, not only must the fashion by pooling resources and website at www.lawsociety.ie (see of taking instructions, but also solicitor advise the client as usual, ideas, our profession will emerge ‘Forthcoming events’ listed on at the time of the execution of they must also endeavour to more strongly from this period the home page). the will. In addition, a solicitor protect the client from possible than we entered it. This is the We hope, through this must often assist the elderly undue influence or abuse.”
www.lawsocietygazette.ie 7
NEWS LAW SOCIETY GAZETTE JAN/FEB 2009 Launch of Guide for Solicitors Employed in the Corporate and Public Sectors he Law Society’s Corporate A ‘Value and values’ Tand Public Sector management seminar provided Committee has launched the in-house solicitors with guidance Guide for Solicitors Employed on the application of ethical in the Corporate and Public principles in their day-to-day Sectors. The guide provides key practice and addressed the key information for existing and aspects of financial management prospective in-house solicitors. – particularly relevant to the Such solicitors represent running of an in-house legal approximately 9% of total Law department. Society membership. The seminar was chaired by The guide centres on Michael Carroll (CIE Group). practical issues facing in- Speakers included Edward Hughes house solicitors, for example, (Dun Laoghaire Rathdown instructing external legal County Council), immediate past Corporate and Public Sector Committee members (back, l to r): Edward advisers, professional practice Hughes, Donall King and Andrew O’Flanagan. (Front, l to r): Sylvia Keane, committee chairman Colin Babe, issues, professional regulation Colin Babe (vice-chairman), Mary O’Connor (chairman), Louise Campbell current committee vice-chairman issues, practising certificates (secretary), Geraldine McAlinden and Vivienne Kane David P Boyle, Paul Behan and and professional indemnity Chief State Solicitor David J insurance, and support services The guide is available on lawsociety.ie. All in-house O’Hagan. The seminar was available to the solicitors’ the committees’ section of solicitor members will receive a attended by 124 delegates and profession. the Society’s website, www. copy later in the year. was very well received.
Lay majority for Complaints and ESSAY COMPETITION The Association of Pension Client Relations Committee Lawyers in Ireland has launched he Law Society’s Complaints PIC: LENSMEN an essay competition, with a Tand Client Relations first prize of €3,000 and a Committee sat for the first second prize of €1,000. time with a non-solicitor Essays are invited on the majority on 16 January 2009. topic: ‘Given the fiduciary This is a requirement for all duties of pension scheme future meetings following the trustees to act in the best enactment of the Civil Law interests of pension scheme (Miscellaneous Provisions) Act members, to what extent 2008. The act’s commencement should trustees offer socially- order came into effect on 1 responsible investment options January 2009. to members?’ The act provides that the Full rules of the competition, chairman of the committee Members of the chairman’s division of the Complaints and Client Relations details of how to enter, and Committee (l to r): Frank Cunneen (substituting for lay member Dan guidance on the issues the will continue to be a solicitor. Murphy), Maura Derivan (solicitor), Frank Brennan (lay member), Simon This was the recommendation Murphy (chairman, solicitor), Brendan Hayes (lay member) and Sheila essay might cover are available of the outgoing non-solicitor Nunan (lay member). (Absent: Liam Kennedy, solicitor, and Dan Murphy) online at www.apli.ie. members. The great majority of client The Society has had the When the government’s complaints, about the service benefit of non-solicitor members decision to legislate for this was or conduct of their solicitor, on this committee for the announced in 2006, the Society RETIREMENT TRUST all of which are investigated last 15 years. They have been warmly welcomed it as a measure SCHEME by the Society, are resolved by nominated by IBEC, ICTU that, together with the proposed Unit prices: 1 December 2008 agreement. Where agreement and the Director of Consumer Legal Services Ombudsman, Managed fund: €3.993774 cannot be reached, however, the Affairs. These independent will further increase the All-equity fund: €0.866245 committee must deal with the bodies have now nominated independence, transparency and Long-bond fund: €1.483171 complaint, and it has extensive the majority of the committee’s accountability of the complaints Cash fund: €2.935451 statutory powers to do so. members. system.
www.lawsocietygazette.ie 9 LAW SOCIETY GAZETTE JAN/FEB 2009 ANALYSIS Human Rights Festival celebrates The Law Society celebrated the 60th anniversary of the Universal Declaration of Human Rights by hosting a ‘poster action project’ and a series of human rights-based events and workshops in December. Elaine Dewhurst reports
n exhibition of art posters of women, the right to be free ALL PICS: MOYA NOLAN Dr Maurice Manning Atitled ‘Human Rights and equal, the right to life, the commended the students on the – Framed by Young People’ right to freedom of speech and cooperative efforts in producing was officially launched on 16 the right to shelter. the artwork and assured students December 2008 by President Others concentrated on that they were “playing [their] of the Law Society John D political issues and the impact part in creating a society that Shaw and President of the Irish of politics on human rights, recognises that human rights Human Rights Commission Dr education, same-sex couples, the are everyone’s rights – in our Maurice Manning. The posters impact of financial restraints on communities, in Ireland as a were produced by civil, social human rights and the dangers whole, and in the wider world”. and political education (CSPE) of bullying and cyber-bullying. Representatives of many of students to celebrate the 60th Other posters tackled abstract the youth organisations in Ire- anniversary of the Universal themes such as ‘it could be you’, land attended. Leanne Caulfield Declaration of Human Rights which dealt with the ease with (President of the Irish Second- A student from St Finian’s College, (UDHR). which human rights violations Mullingar, receives a certifi cate ary Students’ Union), Eibhlin The exhibition showcased can occur and the importance of of participation from Law Society Browne (a Dáil na nÓg coun- the artwork of over 160 young respect for rights. President John D Shaw cillor representing Roscommon) people from all over Ireland, and Nadine McCabe (Youth ranging in ages from 12 to 16 Highlighting injustice their hard work and on “bringing Forum of the Office of the years. The essence of the project An exhibition of this art was these issues to the attention of Minister for Children and Youth was to encourage young people showcased in the Law Society’s your school, your parents, your Affairs) delivered presentations to think about human rights and Presidents’ Hall from 16-20 community and society at large. on the importance of engaging to represent, in a visual manner, December 2008. Over 250 You have created awareness young people in a discussion on their impressions of the most students and teachers, as well as of these issues and you have human rights. significant issues. members of the legal profession, highlighted injustices at home, Each participating school In the true spirit of attended the launch. Opening in other countries and most received a certificate in cooperation, the Irish Human the exhibition, John Shaw importantly, you will bring about recognition of their achievement. Rights Commission (IHRC) congratulated the students on change”. Musical entertainment was and the Human Rights Committee of the Law Society designed the ‘poster action project’ to complement the new classroom resource on the UDHR, developed jointly by Amnesty International and the Curriculum Development Unit of the City of Dublin VEC.
‘It could be you’ Each of the posters addressed serious issues about human rights in Ireland and internationally. While many focused on the denial of human rights globally – raising issues of poverty, exclusion, the control of arms and child labour – others were more focused on specific topics of interest to Ireland, such as the right to vote, the right not to be tortured, the right not to be Enya Higgins and Aoife Fleming (fi rst-year pupils at St Finian’s College, Mullingar), with fellow students at discriminated against, the rights the ‘Human Rights – Framed by Young People’ exhibition, held at Blackhall Place
10 www.lawsocietygazette.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2009 UDHR’s 60th anniversary
provided by students from St Peter’s College, Dunboyne, participants in the Amnesty International ‘Voice Your Concern’ campaign, and members of the National Youth Orchestra. Closing the event, a group of hip-hop dancers from Ballet Chancers, an RTÉ reality television show, wowed the audience with their dynamic dance routines. The exhibition space also provided a setting for a series of human rights-based events and workshops throughout the week of 16 December. Dublin Inner City Partnership exhibited images entitled ‘Children and Human Rights’ from three communities in the city of Dublin – St Michael’s Estate Students from Ballymun Youthreach, Dublin, show off their posters ‘It could be you’ and ‘Shred it’ (Inchicore), O’Devaney Gardens (Dublin 7) and Dominic Street – depicting the need for regenera- punishment entitled ‘That graphic exhibition on human Other lectures were delivered tion in these areas and the this house would criminalise rights. The Dublin students by Noeline Blackwell (FLAC) community response to this need. parents who smack’, chaired by finished the day with a ‘world and Síle McGovern (Refugee The week also facilitated a a representative from the Irish cultures party’ with food and Legal Service). A fair-trade youth workshop on Travellers’ Society for the Prevention of music from around the world. stand from Oxfam also exhibited rights and discrimination, Cruelty to Children. The law school in Cork at Cork. delivered by Pavee Point, with An NGOs market contained also hosted a series of lectures From artwork, to dancing, to the objective of raising awareness information and crafts from on human rights issues. serious discussions on human of Travellers as a minority group Amnesty International, the Irish Niamh Gunn presented a rights-related issues, the Human in Ireland. This workshop Council for Civil Liberties, lecture entitled ‘Miscarriage Rights Festival 2008 had a huge was mainly discussion-based Oxfam, Village Africa, and Habi- of justice’ on the topic of the variety to offer every audience. and interactive, with young tat for Humanity. This was all Innocence Project and the The week raised awareness of people being encouraged to framed by an interesting photo- recent case of Walter Swift. human rights issues, and the participate in the debate through importance of the work of the brainstorming, debates, games legal profession. It promoted and Q&A sessions. human rights-based approaches BeLonGTo, an organisation to education and law-making for lesbian, gay, bisexual and and highlighted the significant transgendered young people work of the IHRC and the Law aged between 14 and 23, also Society in these areas. delivered a workshop in the It also demonstrated young Presidents’ Hall during the week people’s perspectives on of the exhibition, concentrating human rights issues, and it was on issues around prejudice and encouraging to witness the bullying. desire of these young people to seek and bring about change Law School Human Rights Day in the world. The future looks Students of the law schools bright! G in both Dublin and Cork also celebrated the 60th anniversary of Elaine Dewhurst is the Law Society’s the UDHR. Dublin’s law school Hip-hop dancers at the opening ceremony of the Human Rights Festival parliamentary and law reform organised a debate on corporal at Blackhall Place executive.
www.lawsocietygazette.ie 11 LAW SOCIETY GAZETTE JAN/FEB 2009 ANALYSIS
The Solicitors Disciplinary Tribunal: The Solicitors Disciplinary Tribunal’s role is structurally separate and wholly independent of the Law Society of Ireland. But what is its role and how does it work?
he Solicitors Disciplinary final affidavit allowed for the TTribunal’s authority is purpose of determining whether derived from the Solicitors Acts or not a prima facie case of 1954-2008 and the Solicitors misconduct has been made out Disciplinary Tribunal Rules against the respondent solicitor, 2003. The tribunal, which is the tribunal, in exceptional structurally separate and wholly cases, may permit a further independent of the Law Society exchange of affidavits. Such of Ireland, is located at The exceptional cases are confined Friary, Bow Street, Smithfield, to circumstances where the Dublin 7. overriding interests of justice require that such a further Members exchange of affidavits should Members of the tribunal are occur. appointed by the President of the High Court. The tribunal Prima facie decision consists of 20 solicitor members A division of the tribunal then and ten lay members. Lay examines the documentation members are nominated by the furnished and decides whether Minister for Justice, Equality or not the ap plication discloses and Law Reform to represent a prima facie case of misconduct the interests of the general • The contravention of the the grounding documentation, to be adjudicated upon in a public. The tribunal sits in provisions of the acts or any sends a copy to the respondent formal inquiry by another divisions of three, comprising order or regulation made solicitor, who may file an division of the tribunal. two solicitor members and one thereunder, and affidavit in reply to the Where the tribunal is of the lay member. • Conduct allegation(s). opinion that there is no prima tending to bring A copy of the facie case of misconduct on the Right to make an application the solicitors’ respondent part of the respondent solicitor, to the tribunal profession into solicitor’s the tribunal registrar will inform The function of the tribunal, in disrepute. affidavit is then the applicant, the respondent brief, is to receive and adjudicate “The function furnished to the solicitor and (where the Society on allegations/complaints of In addition, the of the tribunal, applicant, who is not itself the applicant) misconduct against solicitors. Society may make in turn may file a the Society in writing of that The Society or a member an application to in brief, is to further affidavit, decision and the reasons. The of the public may make an the tribunal to receive and which should applicant may, within 21 days application to the tribunal for hold an inquiry be confined to from the receipt of such written an inquiry into the conduct of into the alleged adjudicate on dealing with notification, appeal that decision a solicitor on the ground of misconduct of a allegations/ matters raised by to the High Court. alleged misconduct. Where trainee solicitor. the respondent Where the tribunal is of the an application has been made complaints of solicitor in his/ opinion that there is a prima to the tribunal by a member Application misconduct her replying facie case for inquiry, it will of the public, the Society, as procedure affidavit. proceed to hold a substantive the regulatory body for the An application against There are inquiry. solicitors’ profession, must be to the tribunal solicitors” time limits notified of such an application pursuant to the involved in this The inquiry and of its outcome. rules is grounded procedure, but Both the applicant and the on a completed the tribunal, on respondent solicitor should be Meaning of ‘misconduct’ application form application, has in attendance at the inquiry Misconduct is defined in the and affidavit and the discretion to and both may conduct their acts and includes the following should be accompanied by all grant extensions of time. While own case or be represented (in respect of which most documentation (if any) that may the second affidavit (replying) by a solicitor and/or counsel. applications coming before the support the allegation(s). furnished by the applicant will Should the respondent solicitor tribunal relate): The tribunal, on receipt of normally be regarded as the not attend or be represented at
12 www.lawsocietygazette.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2009 its role and functions
The tribunal room of the Solicitors Disciplinary Tribunal
the inquiry, the tribunal may, production of documents, and • Advise and admonish or otherwise of the respondent upon proof of service of the • The compelling of discovery censure the respondent solicitor to be a member of appropriate notice on him/her, under oath of documents. solicitor, the solicitors’ profession, and proceed with the inquiry in his/ • Direct payment of a sum, its recommendation as to the her absence. Unless otherwise At the end of an inquiry, not exceeding €15,000, to appropriate sanction, whether ordered by the tribunal in the tribunal considers each be paid by the respondent financial (in excess of €15,000) exceptional circumstances, the complaint of misconduct solicitor to the compensation or suspension or strike off from proceedings at an inquiry are against the solicitor and makes fund or as restitution or part the Roll of Solicitors. held in public. a separate finding in respect of restitution to any aggrieved The tribunal, pursuant to the each. While it may find some party, without prejudice to Appeal to the High Court rules, regulates its procedures of the complaints proven and any legal right of such party, A respondent solicitor, in at an inquiry in relation to the others not, the tribunal must in • Direct that the whole or part respect of whom a finding of receipt of oral or documentary the case of each complaint give of the costs of the Society misconduct has been made by evidence. Oral evidence at reason(s) for its finding. or of any person appearing the tribunal, may appeal to an inquiry is given on oath/ Where the tribunal finds that before it, as taxed by a taxing the High Court against such a affirmation. there has been no misconduct master of the High Court in finding or may appeal to rescind The tribunal has, pursuant on the part of the solicitor, default of agreement, be paid or vary the order of the tribunal. to the acts, the same powers, the applicant, the respondent by the respondent solicitor. Also, an applicant may appeal rights and privileges vested in solicitor and the Society will be to the High Court against a the High Court, or a judge, informed of its finding(s) and The tribunal may, however, finding of no misconduct or on the hearing of an action in the reason(s). decide not to make such against an order made by the respect of: an order, but instead send tribunal if he/she is of the view • The enforcement of What penalty can the tribunal a report to the President that the sanction imposed by the attendance of witnesses and impose? of the High Court, which tribunal is inadequate or that their examination on oath or The tribunal, pursuant to the report shall, pursuant to the the tribunal itself ought to have otherwise, acts, may by order do one or acts, include its findings, its referred the matter to the High • The compelling of the more of the following: opinion as to the fitness or Court. G
www.lawsocietygazette.ie 13 LAW SOCIETY GAZETTE JAN/FEB 2009 ANALYSIS
Procedural safeguards and pro The summary eviction process for housing authority tenants may infringe certain articles of the ECHR, writes Betsy Keys Farrell or many years, the tenure been served. Unlike a private Convention on Human Rights in four separate cases challenging Frights of public housing tenant, the local authority Dublin City Council v Fennell the s62 summary eviction authority tenants have been tenant has no right to have any ([2005] 1 IR 604), a consultative procedure – Leonard v Dublin considerably inferior to those other evidence considered as case stated. The case turned on City Council (unreported, High enjoyed by private tenants to the reasonableness of the the retrospective application of Court, Dunne J, 31 March facing eviction. If a local eviction, nor does the court have the ECHR Act 2003 and, in the 2008), Donegan v Dublin City authority decides to evict a discretion to consider the merits circumstances, the act did not Council ([2008] IEHC 288), tenant, it may proceed under or to assess the proportionality apply. Nevertheless, the court Dublin City Council v Gallagher section 62 of the Housing Act of the issuance of the warrant went on to suggest that the ([2008] IEHC 354), and Pullen v 1966 (as amended) by serving a once the necessary proofs are summary eviction process “may Dublin City Council (unreported, notice to quit. Where a tenant made. arguably infringe certain articles High Court, Irvine J, 13 does not give up possession to Until recently, the courts have of the European Convention on December 2008). the dwelling, a local authority declined to extend to housing Human Rights, and in particular, Leonard, Donegan and Pullen may make application to the authority tenants procedural articles 6, 8 and 13 thereof, and concerned s62 summary District Court for possession rights whereby the merits of an also article 1 of protocol 1”. evictions originating from of the dwelling. The court is eviction can be determined by alleged antisocial behaviour that empowered to issue a warrant an impartial tribunal established Article 6 and 8 rights was in breach of the tenancy of possession against the by law. In 2005, the Supreme The suggestion was taken up agreements. Gallagher was tenant upon formal proofs by Court revisited the issue and, in 2008, the High Court, a consultative case stated by the local authority that the within the context of the rights unfettered by retrospectivity the District Court, in which required notice to quit has guaranteed by the European concerns, rendered judgment in the occupier claimed tenancy ONE TO WATCH: NEW LEGISLATION EC regulation no 1896/2006 European Enforcement Order as an • Revenue, customs or regulation) to the relevant court creating a European order for alternative option in uncontested administrative matters, in the member state of origin. payment; European Communities claims. This regulation has • The liability of the state for acts In Ireland, this will involve a (European Order for Payment) now been fully implemented in and omissions in the exercise of lodgement in the Central Office of Regulations 2008 (SI no 525 Ireland by virtue of the European state authority, the High Court (RSC order 42C, of 2008); Rules of the Superior Communities (European Order for • Rights in property arising out of rule 3). Courts (European Orders for Payment) Regulations 2008 and matrimonial relationships, wills Form A should include details Payment) 2008 (SI no 551 of corresponding amendments to and succession, of: 2008) the Rules of the Superior Courts • Bankruptcy, • The names and addresses The European order for payment (RSC). The regulation and the • Proceedings relating to of the parties and their (EOP) was introduced to ensure statutory instruments came into the winding up of insolvent representatives, the “swift and efficient recovery operation in December 2008. companies or other legal • The name and address of the of outstanding debts over which persons, judicial arrangements, court to which the application no legal controversy exists” Application of the regulations compositions and analogous is made, (preamble to the regulation). The regulations apply to all civil proceedings, • The amount of the claim, The premise of the regulation is and commercial matters in cross- • Social security, or including the principal and, that the procedures for enforcing border cases. A ‘cross-border case’ • Claims arising from where applicable, interest, payment in cross-border disputes is defined as one in which at least noncontractual obligations (in contractual penalties and other would be simplified and identical one of the parties is domiciled or certain circumstances). costs, in all member states, and it habitually resident in a member • The cause of the action, introduced standard forms to state other than the member state Applying for an EOP (article 7) including a description of the be used by all member states. of the court hearing the action. In order to apply for an EOP, the circumstances invoked as the The regulation complements the There are a number of exceptions claimant shall deliver or send a basis of the claim and of the Brussels Convention and the to the regulation, such as: completed form A (annex I to the interest demanded,
14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2009 human rights watch tection of human rights rights by virtue of succession. the plaintiff to an independent must satisfy itself that the In Gallagher, a question of hearing, as required by articles decision-making process leading fact arose as to whether the 6 and 8. to the measure of interference defendant had satisfied the On finding in favour of is fair and such as to afford criteria under the Scheme of the tenants in Donegan and due respect to the interests Letting Priorities. Each of Gallagher, the courts granted safeguarded by article 8. The the cases focused primarily on declarations under s5 of court also concluded that, where alleged infringement of article the ECHR Act that s62 was a determination was made in the 6 (right to fair trial) and article 8 incompatible with article 8 of the face of disputed facts by a party (right to respect for private and ECHR. In their consideration who was not impartial, a right to family life). The tenants in all of article 8, the courts referred challenge that decision in judicial of the cases save Leonard were to recent ECtHR decisions review proceedings was not a successful. that considered the procedural sufficient procedural safeguard. The distinguishing factor fairness of summary evictions. Further, the court in Gallagher in Leonard was the absence In Donegan, the court noted the ECtHR’s recognition of disputed facts underlying referred to the general of the implicit requirement the decision to terminate the principle enunciated by the for such procedural safeguards tenancy, where the tenant European court that, when under article 8 and found accepted that she was in breach determining whether an them to be comparable to the of the tenancy agreement, interference under article 8 Constitutional guarantee of fair which was subject to an not entitled to a full hearing on is necessary in a democratic procedures in decision making additional undertaking. The the merits and, moreover, the society, a court should consider by public bodies that flows court concluded that, in those availability of judicial review was whether adequate “procedural from the unenumerated rights circumstances, the plaintiff was sufficient to meet the rights of safeguards” are in place and provision of article 40.3.1.
• The cross-border nature of the discretion of the court. application (article 11) if: the court shall issue and cause case. If the court determines that the • The requirements for making to be served on the defendant requirements have only been met the application are not met, (article 12), as soon as possible Examination of the EOP for part of the claim (article 10), • The claim is clearly unfounded, and normally within 30 days of The court shall examine whether the court may propose that the • The claimant fails to send his the lodging of the application, an the requirements as set out in application be amended. Form C response within the time limit, EOP using a form E (annex V). article 7 are met and whether (annex III) is designed specifically or The EOP informs the defendant of the claim appears to be well for this purpose and is sent to the • The claimant refuses the court’s the options available to him/her. founded. The Master of the High claimant to inform them of the proposals. These include: Court shall perform the functions proposed amendments, to invite • To pay the amount indicated in of examination, modification and the claimant to accept or refuse The court shall inform the claimant the order to the claimant, or rectification in Ireland. the amendment within a certain of the grounds for the rejection by • To oppose the order by lodging If form A is not complete, the time frame, and the consequences means of form D (annex VI). There a statement of opposition with court shall give the claimant the of their decision. The claimant is no right of appeal against a re- the court that issued the EOP. opportunity to complete or rectify shall reply by returning form C. If jection of the application. However, The statement of opposition the application (article 9) within a the claimant accepts the proposed this does not prevent the claimant must be sent within 30 days of certain time, unless the claim is amendment, the court can issue from pursuing a claim by means of the service of the order on the clearly unfounded or the application an EOP for that part of the claim. If a new application for an EOP or by defendant. is inadmissible. The court shall the claimant refuses the proposal using another procedure available notify the claimant by sending a or fails to reply within the time under the law of a member state. Opposing an EOP form B (annex II) specifying the allotted, the court shall reject An EOP is issued solely on the time limit for completing and the application for the EOP in its Issuing and serving an EOP basis of the information provided rectifying the application. This entirety. Once satisfied that all the by the claimant, and is not verified time limit may be extended at the The court shall reject the requirements have been met, by the court. As such, the order
www.lawsociety.ie 15 LAW SOCIETY GAZETTE JAN/FEB 2009 ANALYSIS
Both Donegan and Gallagher pursuant to s3 instead of a legitimate aims, while preserving process when fundamental also considered s62 summary declaration of incompatibility the requisite procedural rights are at stake. Strasbourg evictions in respect of article 6 under s5 of the act. A violation safeguards for the plaintiff’s jurisprudence has clearly of the ECHR, which explicitly of s3 entitles the claimant article 8 rights. established housing rights within requires fair procedures in the to seek damages, whereas a Further, the Pullen court the ambit of the procedural determination of civil rights declaration of incompatibility considered the concept of protections required by articles 6 and obligations. Whereas the does not affect the continuing ‘civil right’ and was guided and 8 and, presumably, the same court in Donegan declined to validity of a statutory provision by what it characterised as a holds true in relation to personal make a declaration on the basis nor does it entitle an individual “greater willingness” on the rights under article 40 of the of article 6, the Gallagher court who claims injury as a result part of the European Court of Constitution. concluded that the tenant’s to claim damages in judicial Human Rights to classify a wide Although procedural rights under articles 6 and 8 of proceedings. Instead, they spectrum of issues as falling safeguards must attend the convention and his right to may make application to the within the ambit of article 6(1). when fundamental rights are fair procedures under article 40 Attorney General for an ex gratia Thus, a statutory entitlement affected, there is no set formula of the Constitution were not payment. to accommodation constitutes a beyond the requirements of adequately protected throughout In its analysis of the article ‘civil right’, and decisions taken an independent and impartial the eviction process. 8 interference, the court that impact those rights bring tribunal established by law and pointed out that it was the article 6 into play. However, a empowered to adjudicate on the Pullen v Dublin City Council defendant’s obligation to satisfy full independent merits-hearing merits and proportionality of the Most recently, in the Pullen case, the court that the interference is not required in all cases. It is decision taken. the court found that the local was in pursuit of a legitimate required when a decision is made What remains to be seen is authority failed to have regard aim and was “necessary in a in the face of disputed facts and what approach will be adopted for the plaintiff’s rights under democratic society”. Of note, the nature of the determination by local authorities to ensure articles 6 and 8. In so doing, the the court in Pullen considered does not require some degree convention compliance when authority failed to comply with that the interference with the of particular professional tenants are subject to eviction. its obligations under s3 of the plaintiff’s article 8 rights was expertise that may justify a As the cases are being appealed, ECHR Act and did not perform disproportionate, particularly in lack of independence. In those it may be some time before this its functions in a manner circumstances where the council circumstances, judicial review in becomes clear. G compatible with the state’s had an alternative procedure this jurisdiction is insufficient to obligations under the convention open to it, as proceedings under meet article 6(1) requirements. Betsy Keys Farrell is a solicitor provisions. It is significant that s14 of the Conveyancing Act 1881 The prominent feature of and member of the Law Society’s the court opted to grant relief would have met the defendant’s these cases is the role of due Human Rights Committee. becomes enforceable unless the the EOP enforceable in Ireland. opposition, the defendant shall be to protective measures or make defendant lodges a statement of The High Court has exclusive entitled to apply for a review of the enforcement conditional on opposition with the court of origin jurisdiction in Ireland in relation EOP in certain cases (article 20). the provision of such security within 30 days of the service of to the refusal, stay or limitation of These include where: as it shall determine or, under the order (article 16). This can enforcement of EOPs (RSC order • The order for payment exceptional circumstances, stay be achieved by lodging a form 42C, rule 5). was served without the proceedings upon application F (annex VI) with the court of An order may be refused where: acknowledgement of receipt by by the defendant (article 23). origin. The form should indicate • The order for payment is the defendant and where it was that the defendant contests irreconcilable with an earlier not effected in sufficient time Appeals the claim. There is no need to decision or order previously to enable him to arrange for his There is no appeal from the order specify reasons in the form. If given in any member state or in defence, without any fault on his of the court in relation to the: the statement is lodged in time, a third country – the order can part, or • Issuing of a European the proceedings shall continue in be refused in circumstances • The defendant was prevented enforcement order certificate, accordance with the ordinary civil where the earlier decision or from objecting to the claim by • Refusal of an application for a procedure (article 17). order involved the same cause reason of force majeure or due European order for payment, of action between the same to extraordinary circumstance • Issuing of a European order for Enforcement parties and was recognised without any fault on his part, payment, Where no statement of opposition in the member state of provided that in either case that • Declaring an EOP enforceable. is lodged within the time limit, enforcement, or he acts promptly, or the court shall declare the EOP • The defendant has paid the • The order for payment was For more information on the enforceable without delay (article claimant the amount awarded in wrongly issued or due to other regulation, see http://europa.eu/ 18) in form G (annex VII) and shall the EOP. exceptional circumstances. scadplus/leg/en/lvb/l33212.htm. send the enforceable EOP and the declaration of enforceability to the Review Where the defendant has applied Elaine Dewhurst is the Law claimant. The Master of the High After the expiry of the time limit for a review, the court may limit Society’s parliamentary and law Court has jurisdiction to declare for submitting a statement of the enforcement proceedings reform executive.
16 www.lawsocietygazette.ie COMMENT LAW SOCIETY GAZETTE JAN/FEB 2009 letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Appalled at the contents of AIB letter From: Bernadette Glynn, Oranmore, to them! In the circumstances, Co Galway the bank has no entitlement write to alert all colleagues to issue such ‘threats’ and Ito the contents of a letter I they should be taken to task recently received from Allied immediately on receipt of Irish Banks in respect of such a letter. One can only their allegation that I had not imagine the damage that would replied to a previous letter be occasioned to a solicitor’s from them, and setting out the reputation in the event that the consequences that would ensue bank should carry out the threats should I not reply within a set out in their letter, which certain timeframe. would include the defaming of The letter commenced by a solicitor to their professional asking me to reply urgently to a body, and their client, in letter (even though I had already addition to the interference replied a month earlier), and with other transactions … not setting out the consequences to mention the many, many should I fail to do so. I am AIB: “no entitlement to issue such threats” defamation actions that would setting out hereunder the thereafter be served on them! exact wording of the letter in • Advice that the bank will not wish to take this matter up Such a proposed course of action respect of these consequences, accept further undertakings immediately with your firm.” is not alone high-handed and which one will see, after perusal from your firm until further arrogant, but threatening in the thereof, really amounts to notice, and not before a Needless to say, I was absolutely extreme. threats: complete and satisfactory appalled at the contents of the I have brought the matter to “Accordingly, we should be response is received in respect letter as, leaving aside that I the attention of the Law Society, obliged if you would respond of this case, and that the Law had indeed replied to their asking that they take up the within ten days of the date of Society of Ireland will be so letter, a solicitor’s undertaking matter directly with Allied Irish this letter. Failure to do so will notified, to a financial institution does Banks but, in the interim, I want result in an escalation process, • Advice that the bank will not include progress reports. to bring same to the attention which may involve any or all of notify the customer, to the Our undertaking is merely to of all colleagues to alert them to the following: effect that your firm has failed investigate title, register the the approach being adopted by • A formal complaint to the to honour your undertaking mortgage, and, in due course, Allied Irish Banks, and to urge Law Society of Ireland, and that the customer may forward all title documentation them to reply, in kind. • Advice that, in the absence of a satisfactory response from your firm within six months of the complaint to Bending over backwards, again the Law Society of Ireland, From: Colm O’Connor, has been firmly set down at a the concept of associative the bank may refer your firm JA Shaw & Co, Mullingar, European level, with significant discrimination in Irish law. to the Solicitors Disciplinary Co Westmeath implications for the national Although I was making a Tribunal, and/or Independent n my article ‘Bending laws of member states in this general point applying to all Adjudicator (or the Solicitors’ Iover Backwards’ (Gazette, area”. EU member states, it should be Ombudsman, as appropriate) November 2008, p42), I noted, It has been kindly brought noted that section 6(1) of and/or the High Court, in the context of the ECJ to my attention by the Law the Equality Acts 1998-2004 • Advice that the absence of a decision concerning Coleman Society’s Employment and makes provision for this response in the above may and Attridge Law, that “an Equality Law Committee that concept in Ireland. Some other trigger a review of all cases important precedent has been this sentence might lead a European Union states may where undertakings are held established, and the principle reader to conclude that there now have to act on the matter, from your firm, of associative discrimination was no existing provision for however. G
www.lawsociety.ie 17 LAW SOCIETY GAZETTE JAN/FEB 2009 COMMENT
A beacon of light in the With the Supreme Court affirming in December the High Court’s decision in the O’Brien case, Stuart Gilhooly predicts a bright future for personal injury claimants n these dark days of recession, In addition to this, an order of to legal advice, but also such entertaining and ultimately Ithe last day of last term shone mandamus to register the claim rights to legal representation decisive as that delivered by a like a beacon of light through without the medical report was as have been identified by the senior counsel at the height of the gloom. On 19 December, also sought. applicant in this case. Nor are his powers. the Supreme Court provided The issue of registration such rights rendered irrelevant The most memorable example the news that all personal was resolved, but the issue by the fact that PIAB does not was when he asked the Supreme injury practitioners and 97% then crystallised into purely conduct hearings.” Court to imagine an accident on of claimants had been waiting whether Declan O’Brien was He ordered a declaration as a bus that involved a lawyer, a to hear. The right to legal entitled to be represented by his follows: “[PIAB] in declining schoolteacher, a factory worker representation before PIAB solicitor. It is hard to imagine to accept or act upon the and a foreign national. He asked was unanimously confirmed by a more important issue for the authorisation dated 16 August the court to determine whether the three-judge court, subject solicitors’ profession than that 2004 by corresponding each of these potential personal to the right of PIAB to copy of legal representation in such directly with the applicant (and injury claimants had an equal any documentation sent to the circumstances, so copying such opportunity to put their best claimant’s solicitor. an application was correspondence foot forward in an application to This long-running dispute made by the Law to his solicitors) is PIAB. For those seated on our began way back in 2004, when Society to join the acting in breach side of the Supreme Court at Declan O’Brien made an proceedings as of section 7 of the least, that was the moment the application to PIAB through amicus curiae. “The lawyer PIAB Act 2003 or case was won. his solicitor, Denis Boland, The matter places the without authority In the Supreme Court following an accident in came on for under any other judgment, Mrs Justice Macken November 2001. He signed an hearing in front of person on an provision of the reached the inevitable conclusion authorisation that made it clear, Mr Justice John equal footing. act.” that there are both pitfalls and among other things, that he MacMenamin in complexities arising in and from wished his solicitor to handle December 2004 It creates a Equal an application that simply could the application exclusively on his and a decision situation opportunity not be foreseen or solved by a behalf and that he did not wish was handed down This decision personal claimant. Although it to receive correspondence from on 25 January which is even was appealed was clearly open to a claimant PIAB. As was their modus operandi 2005. Although handed” by PIAB to the to make the application himself, at the time, PIAB ignored this a number of Supreme Court, the option to use a solicitor authority and continued to arguments were where it was must be available to ensure contact the claimant directly, made by PIAB, eventually heard fair procedures. She felt that merely copying correspondence the thrust of on 7 April 2008. allowing a claims manager to the solicitor. In addition, their case can be The Law Society or solicitor to represent a PIAB refused to register the summarised as claiming that the was represented in both courts respondent (as had been claim due to the non-availability PIAB process was administrative by a legal team that befitted conceded by PIAB’s counsel in of a medical report. in nature, not contentious, and the importance of the issue. the Supreme Court), while not therefore not requiring legal Roddy Bourke of McCann allowing a solicitor to represent Injunctions sought representation. FitzGerald instructed leading a claimant, did constitute an With time running against him Mr Justice MacMenamin junior counsel Declan McGrath “inequality of arms” and, as such, and not wishing to receive any made an order in favour of and constitutional guru Gerard could not be regarded as fair further correspondence, this the applicant, reasoning: Hogan SC, led by the illustrious procedures. prompted O’Brien to instruct “Thus, even if I accept that the Dermot Gleeson SC. Those Mrs Justice Denham adopted his solicitor to seek an injunction procedures before [PIAB] are of us who had the privilege a similar approach. She, too, preventing PIAB from further administrative in nature, I am to witness the performance found that, as claimants would interfering with the solicitor/ satisfied that by reason of the of Dermot Gleeson on both not have the “skill or expertise” client relationship and to abide complexity, importance and occasions will probably wait of respondent’s agents or by the written authority to deal potential consequences, they are a long time before we see insurers, anything other an exclusively with the solicitor. such as to justify, not only access legal argument as compelling, equal approach would be unfair.
18 www.lawsocietygazette.ie COMMENT LAW SOCIETY GAZETTE JAN/FEB 2009 viewpoint PIAB gloom “The lawyer places the person remains bright. This judgment on an equal footing. It creates a is good news for personal situation which is even handed.” injuries claimants who, if denied She, too, noted the potentially representation by their solicitors, negative consequences for a would have had to fend for claimant who did not have themselves in dealings with advice. PIAB. She also noted, as did Mrs The possibility remains that Justice Macken, the dearth of PIAB may seek to have the any legislative intention on the Oireachtas amend the legislation part of the Oireachtas to deny to restrict the right to legal a right to legal representation. representation. This is unlikely “If the Oireachtas had intended for three reasons. PIAB to be a lawyer-free zone, Mrs Justice Denham (left) and Mrs Justice Macken delivered written First, PIAB will be relatively it would have said so.” She judgments: Chief Justice Murray concurred happy with the outcome, in that found that the right to legal they can copy all correspondence representation was fundamental refusing to correspond directly and the very clear implication is to the claimant and therefore and “a court would be slow to with the complainant’s legal that, while legal representation achieve what was always their draw such an inference of such a representative was “a direct does not affect such a policy, stated aim, that is, to keep the breach of fundamental right”. interference with the applicant’s the provision of costs would. claimant informed of progress. There was, however, a final right to legal representation She accepts that PIAB awards Secondly, the obiter matter to be dealt with. She felt and indirect interference with costs in certain cases (that is, to comments of Mrs Justice that the claimant was entitled the applicant’s right of property vulnerable claimants), but she Denham suggesting that such to be kept informed of the in his personal injuries action”. says this fact “does not grant a an interference would be a process and that as PIAB is not She further noted that she right of costs to a claimant”. breach of constitutional rights a court and does not have the assumed “that the Oireachtas Mrs Justice Denham reached will surely cause alarm with formality and rules of a court, it did not intend to breach a a similar conclusion: “the right legislators. may send a copy of a letter sent constitutionally protected right”. to legal representation is a right Finally, PIAB is seen to be to a solicitor to the claimant at It is clear, therefore, that any which a claimant may exercise, in a success and working well the same time, throughout the attempt to amend the legislation the knowledge that costs of legal within government, and it’s process. in this regard in the future would representation will not be paid hard to see that amending Mrs Justice Macken was silent have to jump that hurdle. by PIAB”. legislation that would probably on this issue, but Chief Justice It certainly seems that the be unconstitutional would be a Murray, who did not deliver a Thorny issue judges came to their decision priority at this time. judgment, expressly agreed with So what happens next in this on the basis that costs are not As for us, we need to continue the approach of Mrs Justice particular soap opera? No automatically payable and, in to look after the best interests Denham in this regard. doubt the thorny issue of costs my opinion, it would be very of our clients. If this involves Finally, both judges agreed will raise its head. There will difficult to shift this view in taking PIAB to task over that PIAB was entitled to dictate be a body of opinion that this light of the rationale behind the delay, inadequate awards or the terms of any authorisation judgment opens the door for judgments. unreasonable/unlawful use of its on which a claimant wished to costs to be awarded in every case This is, of course, an entirely powers, then that’s what we must rely for the purposes of ensuring before PIAB. This would, on the different matter to the issue of do. And if the award is right, representation. reading of the judgments handed costs for vulnerable claimants, advise the client to take it – if It is worth noting that, down, most likely be wrong. which have been allowed as a not, refuse and move on to court. while the Supreme Court While clearly any views result of PIAB policy but which However, be under no could not deal with the issue of expressed by the judges on are, in many cases, pitifully illusion: PIAB is here to stay. constitutionality of the practice the question of costs would be inadequate and, at other times, Nothing we say or do is going (as it was not the subject of the obiter, Mrs Justice Macken dealt totally inconsistently awarded, to change that. The war is over, appeal), Mrs Justice Denham did with the issue on a number of based on criteria that are unclear now let’s give peace a chance. G make an interesting obiter dictum occasions. She made it clear to claimants and their legal observation. She commented that the public policy behind advisors. Stuart Gilhooly is chairman of the Law that the PIAB policy of PIAB has been to reduce costs The future overall, however, Society’s Litigation Committee.
www.lawsocietygazette.ie 19 LAW SOCIETY GAZETTE JAN/FEB 2009 COVER STORY
BATTEN DOWN HATCHATC The economy has hit rough seas – bad news for clients and potentially worse news for law firms. Many practitioners are extremely concerned about steering their firms through the choppy waters of 2009 and are facing the challenge to survive and prosper. David Rowe takes the helm
MAIN POINTS • Recession-proofing your firm • Assess and act • Effects of greater competition • Reviewing staff and salary levels
20 www.lawsocietygazette.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2009
THE HESHES he impact of the deterioration in the to the economy, such as conveyancing, commercial, economic climate on Irish law firms has banking and other related activities, have been hardest been dramatic, with surprisingly differing hit. Some areas of activity are largely immune to a reactions in various sectors of the market. slowdown, such as probate and crime. Other areas, TThis may be partially explained by the like litigation, increase in a challenging economy. fact that the slowdown hit private-client firms first, The effect on any particular practice is largely through residential conveyancing, with the slowdown dictated by the spread of its work over different work accelerating into the commercial practice areas in areas, although there are implications for cash flow the last six months. In spite of this, and somewhat across all practice areas. surprisingly, many of the larger firms seem to be reacting slowly. Peaks and troughs The effect on any particular firm depends on its Most Irish law firms have a mix of practice areas. profile of turnover. The areas that are more open Ten years ago, this might have been 45% litigation, 30% conveyancing, and 25% other areas. With the introduction of the Personal Injuries Assessment Board and the boom in conveyancing, the profile changed to an average of 50% conveyancing, 30% litigation and 20% other. For most firms, 2006 and 2007 were the peak years, with 2008 showing a significant slowdown in the number of new transactions. This trend accelerated towards the latter end of the year, but the impact on fee income was, on average, not dramatic, as fees from transactions in late 2007 and in early 2008 were realised in 2008. Where residential conveyancing made up a substantial part of the practice’s fee income, the effects were seen earlier. Most practices will see their income falling by 20% to 30% in 2009 compared with 2008 levels.
Man the decks It is clear, therefore, that we are heading towards lower fees for the next couple of years. It is a simple supply/demand equation. There will be many more suppliers of legal services at all levels, from residential conveyancing to complex commercial transactions, than there are clients looking to procure these
www.lawsocietygazette.ie 21 LAW SOCIETY GAZETTE JAN/FEB 2009 COVER STORY KEEPING IT ON AN EVEN KEEL: TOP TIPS FOR RECESSION- PROOFING YOUR FIRM • Strong leadership. Law firms can be extremely difficult to manage, these times. If one is not already in place, install a short-term thanks to the independence of lawyers. Managing partners must marketing plan. This should consist of a range of activities, such encourage lawyers to step out of their comfort zones. They will need to as business development tactics, article generation, informative make difficult decisions and display strong leadership if decisions are seminars, networking events and advertising. Look at spending money to be taken and actually executed. more efficiently on ‘face time’ with clients and improve the marketing • Monitor your financials. Review and increase the frequency of your efforts of your lawyers to maximise their exposure in the slow market. financial reporting. Except in the most disciplined firms, many lawyers Most of the effective marketing tools do not involve a significant don’t pay close attention to the numbers. Change happens fast during monetary spend – they involve spending time. a recession, and clients come under financial pressures themselves, • Mind your clients. Minding your clients will be one of the biggest which will have a knock-on effect on the firm. By ramping up your challenges firms will face. Other firms will try to fish in the same pool reporting, and coaching your partners on warning signals and what to of clients and become more competitive on price and aggressively try look out for, you will reduce the risk of running into a financial crisis. to poach outside their own client bank. Stay close to your clients and Remember that ‘cash is king’. strengthen and build client relationships. • Make the hard decisions quickly and humanely. Layoffs, if required, • Manage staff expectations. Explain and communicate with staff must be done quickly and humanely – not only to preserve capital, about the future plans of the firm and the plans you have put in place but also to get the firm past this trauma and focused again on moving to weather the recession. Knowledge is power, and when staff feel forward. involved in the process, they become motivated and will do what is Redundancies will be inevitable in order to get some firms through expected of them, rather than default to ‘business as usual’. the recession. This should be the last resort, and other steps can • Think strategically. Don’t panic. Think strategically about whether and be taken before it gets to this point. Carefully assess the continued where to cut short-term resources. Look at the overall goals of the employment of underperformers. Where the market is no longer buying firm and, if necessary, take this opportunity to re-engineer or sever specific services, consideration must be taken to upskill staff or areas that have become less profitable. While strategy may be more make alternative working arrangements. Look at long-term solutions challenging during recessions, opportunities will arise to enhance both rather than knee-jerk reactions that could negatively impact on the firm your client mix and your talent base. further down the road. • Think positively. For most firms, new business has come easily over Remember that pay cuts can achieve the required savings while the past decade. New work and new transactions came in unsolicited. leaving a firm’s competitive capability intact. Redundancies alone are In some cases, law firms did not even know where a new client had unlikely to be the correct solution – a combination of redundancies come from. Many firms became blasé and complacent. and pay cuts is probably required. Be fair: while it is definitely an The new economy challenges us all to re-engage. Those that are employer’s market now, this will change. tired and lack the appetite for the new environment will fail. The • Keep marketing. One of the biggest myths is to cut marketing when new economic climate requires a renewal of energy and of positive times are bad. In actual fact, firms must continue to market through thinking.
services. In that environment, prices will fall. We undercutting and marketing to other people’s clients are all going to get paid less for our services over the will become the order of the day. next couple of years, so our cost base in delivering The reaction to date across the different sizes these will need to be lower. Charge-out rates will fall. of firms has been surprisingly varied. Many of the Clients will be able to buy services from the large smaller firms have reacted quickly, with others not firms for the same as their traditional local supplier – having reacted at all. It is clear that all firms need to reassess their position – for small firms, in some cases without the necessary internal or external advice, this can be difficult. In general, medium-sized firms appear to have reacted quickly. Staffing levels have WEATHERING THE STORM been cut. This has been achieved by a combination • Keep service levels to existing clients high, of redundancies, shorter working weeks, sabbaticals, • Look for scope to develop other practice areas in the short term, for example, natural attrition and not taking on qualifying trainees. litigation, The larger practices have to date, by and large, left • Keep structures in place for a pick-up in approximately two years, their staffing levels intact. This is surprising, given • Maintain space for partners to market the firm – don’t allow them to get clogged that they are the most affected by the economic up with small transactions, downturn. • Keep succession planning intact, As well as reviewing staffing levels, firms have • Match staffing mix to the work available (cost, seniority and complexity), and been actively looking at salary levels. In the • Look at salary reductions in preference to redundancies. context of falling prices received from clients, salary cuts are inevitable. Bonuses have been scaled
22 www.lawsocietygazette.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2009
back significantly, and are now only available for reassess their position in order to minimise the effect exceptional performance. During the years of shortage of the slowdown and to capitalise on the undoubted of both qualified and support staff, bonuses became opportunities that are out there. Strong firms become a retention mechanism rather than a performance stronger during a recession. tool. All this has now changed utterly. Salaries for Irish law firms are facing challenges not faced solicitors, legal executives and other support staff for a decade. These new challenges have come look as if they are going to fall, depending on the quickly and are forcing most firms to remodel. location and area of the practice. For most firms, the They will also force changes in the ownership consequence of not doing this will be that the partners structure in the profession, with mergers, will earn less than the staff they employ. dissolutions, retirements and redundancies being Firms who have faced up to the harsh realities of seen more frequently. Keeping your head and 2009 and made the necessary decisions have found remembering that we are in a phase that will pass the process very difficult. Making tough decisions is is important. It is all too easy to get consumed with always hard. However, these are decisions that have to worry, self-pity and the general gloom fed by the be made. media and other sources. A decisive and balanced reaction is required: think All aboard and act positively and you will recession-proof your In the midst of the challenging economic firm. G environment, there is a need to remain positive. Well-managed firms are already planning ahead. Our David Rowe is managing director of Outsource, business advisors recommendation is that firms must act immediately to to Irish law firms. Contact David at [email protected].
www.lawsocietygazette.ie 23 LAW SOCIETY GAZETTE JAN/FEB 2009 LITIGATION Performance ANXIETY There has been an increase in claims before the courts to compel reluctant purchasers to close on sales agreed in better times. Two recent decisions offer an insight into how the courts are treating such claims, writes Niamh Herron
n December 2008, in Kelly v Simpson, the High Mr Simpson had been led to believe. Nonetheless, Court refused to order a potential purchaser to he appeared willing to proceed with the purchase. complete a sale. The dispute centred on a 2.5 Contracts were exchanged and signed, although the acre elevated site in Schull, Co Cork, with views closing date was put back to October 2007, later than Iover the town and sea. There was an existing was initially envisaged. However, the sale did not bungalow on the site, an old stone ruin and a wooded close and Mr Kelly served a completion notice on area. Mr Kelly bought the property in December Mr Simpson in January 2008, and a further one in 2006 with a view to selling it on. He engaged a February 2008 for the sake of certainty. local auctioneer for this purpose. The property was marketed as being capable of development. That Specific performance development would involve the building of two more The judge noted on the evidence that he would have houses, together with the demolition of the existing been prepared to find that an enforceable contract bungalow and the building of a much larger ‘executive for sale was entered into between Mr Kelly and residence’ in its place. Mr Simpson. The essential ingredients for a valid The auctioneer, who knew Mr Simpson, contract for sale of land existed – namely, the identity approached him to see if he was interested in the of the purchaser and the seller, a description of the property. Mr Simpson viewed it in May 2007 and land, and the agreed price. However, the remedy of was told by the auctioneer that the price was €1.5 specific performance is an equitable remedy, and the million. The following day, Mr Simpson agreed to judge felt he was obliged to look beyond “the legal buy the property at the asking price. Mr Simpson form of transactions to the elements of conscience was reluctant to pay either a 5% booking deposit to that may impact on whether it is fair to grant the MAIN POINTS the auctioneer or a 10% deposit on the signing of the remedy”. On the evidence, the judge found that the contract, as would be the norm. However, this never seller and the auctioneer were aware of planning • Recent decisions became an issue, as Mr Kelly never sought a deposit. restrictions in the area. Further, the high price of €1.5 of the Irish courts He was satisfied to rely on Mr Simpson’s business million for the property was achieved “by specific on specific reputation. representations designed to undermine the planning performance In June, at Mr Simpson’s request and expense, code and the entitlement of the local planning • Cannot profit from some trees on the site were cut down. This was to authority to properly control planning” in the area. wrongdoing facilitate a digital survey of the site before making an Interestingly, although the parties did not • Court protects application for planning permission to Cork County specifically plead on this point, the court felt it had rights of non- Council for two additional houses on the site. Mr a duty to intervene. It did not confine itself to the parties Simpson’s architect reported negatively in terms of rights of the parties to the proceedings. The court • Relief denied if the site’s development potential and concluded that held that it would not grant an order requiring Mr substantial delay “one additional dwelling may be permitted on the Simpson to take “property at a price that was only site”. This was a much less attractive proposition than achieved due to an agreed scheme to undermine
24 www.lawsocietygazette.ie LITIGATION LAW SOCIETY GAZETTE JAN/FEB 2009
the planning code”. That agreed scheme involved process of finding a buyer was convoluted. Two of the “If approaches carrying out some works to the roof of the ruin, properties were to be sold with tenants in place, but to the planning such that it would appear of sufficient upstanding for this may not have been communicated to the eventual renovation, and applying for planning permission purchaser. process are not for a residence on the wooded area of the site in the The sale of 13 Summerhill Place, which was honest, then it name of a suitably qualified local person. The court derelict and unoccupied, closed in October 1998. The exercised its equitable jurisdiction to ensure the price paid was IR£22,500. The agreed price of each is fundamentally planning code was respected. In his judgment, Mr of the other two properties, which were habitable undermined. Justice Charleton said: “If approaches to the planning and tenanted, was IR£25,000 each. The purchaser process are not honest, then it is fundamentally was insisting on vacant possession of the remaining Such attitudes undermined. Such attitudes are destructive of the rule two properties, as per the contract, but the seller are destructive of law.” It would appear that Mr Simpson had a lucky was not prepared to close the sale on that basis. The escape due to the court’s consideration of the wider purchaser’s solicitor sent letters to the seller’s solicitor of the rule of Schull community and the court’s duty to protect it in November 1998, March 1999 and May 2000 law” from a less than honest planning application. enquiring as to the current position regarding vacant possession and noting that the purchaser was eager Substantial delay to proceed. No response was received to any of these Another application for specific performance of a letters. Time passed and, in June 2004, the purchaser contract for the sale of land occurred in McGrath became aware that the properties were vacant. His v Stewart & Anor. In contrast to the Kelly case, in solicitor issued a completion notice requiring the this action, the purchaser sought to enforce the seller to close the sale and, when this did not happen, transaction. Contract documentation was signed in the current proceedings were issued on 11 July June 1998, but proceedings were not issued in the 2004. This was over six years after the signing of the High Court until July 2004, with judgment being contract. delivered in November 2008. The court found that, while the parties may have By way of background, the purchaser agreed to had different understandings of what they were purchase three properties: 9 and 13 Summerhill Place buying and selling, the contract documents signed and 14 Rutland Street, in Dublin’s inner city. The by or on behalf of both parties were clear. The
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court was satisfied on the evidence that the parties the event of enforcement at the time of breach or had entered into a valid contract for the sale of the soon after”. LOOK IT UP three properties with vacant possession. Unlike the Mr Justice Murphy further stated that even “in the Cases: Kelly case, here the court did not find any evidence uncertain climate currently prevailing in the property • Kelly v Simpson of moral turpitude on the part of the parties such as market, the [purchaser] could not hope to acquire [2008] IEHC 374 would prevent it granting the equitable remedy of equivalent properties for a sum equivalent to the • McGrath v Stewart specific performance. contract price agreed in 1998”. Accordingly, the court & Anor [2008] IEHC However, one of the grounds pleaded on behalf allowed the defence of laches and refused to order the 348 of the seller in his defence of the proceedings was seller to complete the sale. the doctrine of laches. In order to succeed on the However, all was not lost for the purchaser as, basis of laches, the seller would have to show that, in the event of the court not awarding specific not only had a substantial period of time elapsed performance of the contract, he had sought damages. before proceedings were issued, but that there The court agreed, and awarded damages. I will not go were circumstances that would render it unjust to into the method for calculating damages prescribed enforce the claim against him after such delay. In by the court in detail, other than to say that the this case, the contract was entered into in 1998 with purchaser was not allowed to profit from his delay. an agreed closing date of 23 July 1998. The sale of 13 Summerhill Place closed on 9 October 1998. Systemic delay It became clear at this time, and was subsequently The delay in the court system is another matter reinforced, that the seller did not intend to close the entirely though, and is highlighted by the above two other two properties other than subject to the existing cases. tenancies. As the contract signed by the parties The Kelly case, where proceedings were issued in provided for vacant possession, the seller was acting in 2008, was heard by the commercial division of the breach of contract in refusing to complete with vacant High Court in the same year. Generally, claims with a possession. Instead of pursuing his claim at that time, value in excess of €1 million can be dealt with by the the purchaser delayed, and the court found it to be “a commercial division of the High Court. By contrast, substantial delay”. proceedings were issued in the McGrath case in 2004, with the decision of the High Court being delivered Defence of laches in November 2008. Ironically, while McGrath was The court then had to consider whether the not allowed to profit by his own delay in issuing circumstances in the case were such as to render an proceedings, he did profit as a result of delay in his order requiring the seller to sell at the contract price case coming on for hearing. agreed in 1998 inequitable. Evidence was given that To conclude, the courts will not entertain the value of the properties had increased more than purchasers who delay substantially in issuing tenfold by the time of the court hearing. The court proceedings with the expectation of benefiting from a found that the purchaser, “an experienced property rising market, or indeed a seller who delays in a falling dealer in the local area, must have been well aware of market such as is upon us at the moment. Also, the the steadily increasing value of the properties” and courts will not grant equitable relief where the result would have known that the seller would be prejudiced would enable a party to profit by his bad faith. G by his delay in bringing proceedings. Consequently, the seller “would suffer greater financial hardship if Niamh Herron is a senior associate in the Dispute Resolution and the claim were enforced now than he would have in Litigation Department of Eversheds O’Donnell Sweeney, Dublin.
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www.lawsocietygazette.ie 27 LAW SOCIETY GAZETTE JAN/FEB 2009 PRACTICE MANAGEMENT
It was a tough year for many firms, and 2009 is unlikely to be much easier. For many, survival will be an issue – but survival will be much easier for those with effective leadership and management, writes Andrew Otterburn
he survival of many firms in a tough economic difficult to find the time to make the changes that you MAIN climate may depend on an ability to plan probably know are needed – a tightening in the economy POINTS and restructure and on good financial can do wonders to focus minds on the need to improve. • Effective management. Many firms are not strong in Here are some minimum requirements: leadership and Tthese areas, but there are at least ten basic 1) Develop a strategic plan for your firm – what are management areas that partners should consider addressing. your firm’s strengths and weaknesses? What are you necessary For the last five years, we have undertaken an annual good at and should try to develop? What are you weak • Effective financial benchmarking survey for firms in Ireland. Our at and should drop? What might the markets you financial latest survey, published over the summer of 2008, was for operate in look like as the recession comes to an end? management financial years ending in 2007. How can you position your firm to take advantage of • Ten basic Of firms that took part, the average fee income in the upturn when it comes? Why should your clients areas to both 2007 and 2006 was approximately 1% lower in use you rather than other firms? What makes you address 2007 than in 2006. However, their average profits were different? down by 14%. The firms with year-ends prior to the 2) Create an appropriate management structure end of August 2007 saw fees and profit rise by 7% and that enables those with leadership skills to deliver 5% respectively. Those with year-ends after August, by the strategic plan. Identify people with energy and contrast, saw a fall in fees and profit of 9% and 33% drive and give them the opportunity and authority to respectively. The survey is based on a relatively small develop the firm. Tap into the strengths of your firm – sample, and the results are not necessarily representative. your people – and that is not just at partner level. However, many will relate to this dramatic fall in profits. 3) Develop effective procedures and systems for And this of course was 2007. In 2008, the position for actually processing work. This might include looking most firms worsened. at your computer systems, but should start with the way your fee earners manage their cases. How is work Ten basic areas allocated? Who monitors caseloads? Are realistic The need for effective management – in particular, section 68 letters provided? Do you give clients cost effective financial management – is lessened when things updates as a matter unfolds? are going well, but becomes crucial when an economy 4) Ensure all of your fee earners time record – both slows down. Most firms in Ireland have enjoyed a run their chargeable time, but also non-chargeable time. of good years with high profits and will hopefully have The main purpose of time recording is not billing – reserves to get them over the next couple of years. Some although for fee earners who bill on a time basis it is will not have such reserves, however, and many will not clearly essential – but for assessing the cost of doing have made adequate provision. the work and for knowing what people are doing. By the time we come out of the slowdown, some Areas to monitor would include: firms will have closed, but others will have taken the • The percentage of the day that has been accounted opportunity to restructure, refocus and strengthen their for – the goal should be 100%, practices. They will be ready for the upturn when it • The percentage of this time that is chargeable – comes. All firms should ensure they do this. Ironically, goals will vary according to fee earner, one of the few good things about an economic slowdown • The percentage of the chargeable time that is billed is that it presents an opportunity to improve how your to clients and that the client pays for – a target of firm is managed. When times are good, it is invariably 90% would not be unreasonable. MANAGING TO PULL 28 www.lawsocietygazette.ie PRACTICE MANAGEMENT LAW SOCIETY GAZETTE JAN/FEB 2009
5) Prepare a budget at the start of each year. improves, the more successful firms will be those Set time targets for fee earners, not just in terms with higher levels of gearing. of fees, but also looking at marketing, training 10) Develop a marketing plan. As traditional and management. Consider team targets rather sources of work have slowed, firms are, often for than individual targets and avoid complex bonus the first time, having to think about marketing schemes. Beware paying a bonus that is related to their practices and actively trying to generate an individual’s fees, as it will often result in work work – something that is not easy if you have hogging. It also undermines any attempt at team never had to do it before. There is work out there working. but, increasingly, you will have to be imaginative 6) Produce management accounts at least each in spotting opportunities and will have to work quarter. These should be as simple as possible harder pitching for it. This will often require and, if the firm is departmentalised, should show knowing what prices you can tender for work at departmental or team profitability. while still making a profit, which comes back to 7) Focus on cash. Most successful businesses both the need for financial information in the law and outside place a high focus on cash management. This means having a sensible A good New Year’s resolution for many firms will level of partner capital and then setting certain be to be prepared for the upturn – and to have the performance targets that are related to cash systems in place to ensure they survive the intervening management. Areas to consider would be unbilled period. Some will not survive, but those that do are disbursements per fee earner, debtors per fee likely to have effective leadership and management, earner and debtor days. an ability to plan and restructure, and good financial 8) Understand your firm’s average hourly cost, management. You should use a period of slower and the minimum hourly charge-out rates you activity to ensure you have these in place. G should be using, for example, if tendering for work. Andrew Otterburn, Otterburn Legal Consulting, is a 9) Appreciate the importance of gearing – the chartered accountant and management consultant and is a number of other fee earners in addition to each member of the national executive of the Law Management equity partner. Long term, as the economy slowly Section of the Law Society of England and Wales. THROUGH www.lawsocietygazette.ie 29 LAW SOCIETY GAZETTE JAN/FEB 2009 LITIGATION dumb wit
The role of experts in the investigation and prosecution of criminal offences is an important one, and the Law Reform Commission has recently turned its attentions in this direction. Yvonne Daly hunts for trace MAIN POINTS • Role of experts in e are all more aware than ever of and indeed in the civil courts, in Ireland may not investigation and the work of experts in the field be as glamorous or exciting as TV would have one prosecution of criminal investigation and believe, it is nonetheless an important one and the • LRC Consultation prosecution, given the prevalence Law Reform Commission has recently turned its Paper on Expert Wof television programmes dealing attentions in this direction. Evidence with such issues in recent times. From CSI: Miami to The LRC has published a Consultation Paper on • Recent Law and Order: SVU, from Bones to Dexter (serial killer Expert Evidence, which seeks to stimulate debate and controversy and by night, blood-spatter analyst by day), our TVs dialogue in relation to the use of expert witnesses the situation in seem to be almost overrun with the phenomenon in both civil and criminal trials. To date, the law on Ireland of expert evidence. While the role of experts in the expert evidence has been largely constructed by the investigation and prosecution of criminal offences, courts, with little interference from the legislature.
30 www.lawsocietygazette.ie LITIGATION LAW SOCIETY GAZETTE JAN/FEB 2009 ness
until after the child was born, and indeed, quite often, the woman would be pardoned at that point. Therefore, the need to prove that one was pregnant could be a life-or-death matter. Without the medical or scientific expertise of the modern era, the proof of pregnancy would be based on the verdict of the all-female jury, who were empanelled under a writ de ventre inspiciendo (a writ to ‘inspect the belly’) and invited to examine the woman in question in order to declare whether or not she was pregnant. Since then, the use of special juries has been abandoned and, in cases requiring specialised knowledge, an expert in the relevant field instead CSI Miami’s Horatio Caine: the work of a real expert provides information to the court. While the level witness doesn’t actually require sunglasses of technology and expertise available to courts is nowadays plainly more accurate and verifiable than in past times, expert evidence and expert witnesses are As with many areas of the law, however, this now not without their challenges, risks and controversies appears to be changing. As a first step towards such for the legal system. change, the consultation paper sets out 39 provisional recommendations for reform of the law in this area. Witness for the prosecution The issue of expert evidence has received considerable Why didn’t they ask Evans? attention in England and Wales in recent times due The consultation paper traces the origins of expert to three acknowledged miscarriages of justice in three evidence right back to the 17th and 18th centuries, very similar cases where convictions were based on the and looks at the early use of specialist juries in cases expert testimony of an eminent paediatrician, Prof Sir of a technical or specific nature. One particularly Roy Meadow. These cases involved the convictions interesting issue noted by the commission is the use of of Sally Clark, Donna Anthony and Angela Cannings all-female juries in situations where it was necessary to for the homicides of their own children. In each case, determine whether or not a woman was pregnant – a Prof Meadow had given evidence of the statistical woman who had been convicted of a capital offence unlikelihood of the children in question having died in the 17th or 18th centuries could have her death from sudden infant death syndrome (or cot death). sentence postponed if she could prove that she was The convicted women served substantial periods pregnant. The death penalty would not be enforced of time in prison (18 months for Angela Cannings,
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not unwilling to take the stand for fear of resultant litigation. In the English High Court, it was held that, just as the courts could not generally apply a sanction to a witness based on his in-court testimony, the GMC could not initiate disciplinary proceedings against Prof Meadow due to his inaccurate evidence. In the Court of Appeal, however, it was held that inaccurate expert evidence can lead to the initiation of fitness- to-practice proceedings and, further, a court may refer an individual to the disciplinary committee of the relevant professional body where that individual has given misleading expert evidence. Nonetheless, the Court of Appeal found that Prof Meadow was not guilty of serious professional misconduct and the decision to strike him from the register was therefore overturned. The court held that, while Prof Meadow’s opinion was incorrect and had significant consequences, he held it honestly. It seems, then, that it may require a dishonest portrayal of the evidence for a significant penalty to attach to the expert witness in England and Wales.
The Law Reform three years for Sally Clark and six years for Donna Man in the brown suit Commission’s Anthony) before being eventually acquitted and freed In Ireland, controversy in relation to expert evidence Consultation Paper on Expert Evidence was on appeal. has not been avoided. The issue of expert testimony launched by Ms Justice In the case of Sally Clark, whose two sons had came to the fore perhaps most prominently in recent Fidelma Macken, judge died, Prof Meadow had told the court that the chance times in relation to the so-called ‘Annabel’s case’. of the Supreme Court. of two children dying in an affluent family was “one This case, which involved the killing of a young Attending the launch at the commission’s office in 73 million”. This was later disputed by the Royal man, Brian Murphy, in a brawl outside a South on 13 January 2009 Statistical Society, who wrote to the Lord Chancellor Dublin nightclub in August 2000, led initially to were (left) Ms Justice in England to say that there was no statistical basis the conviction of one person, Dermot Laide, for Macken and President for such a claim. Other reports and evidence in manslaughter and the conviction of him and two of the Law Reform Commission Mrs Justice fact suggested that the likelihood of two cot deaths others, Desmond Ryan and Sean Mackey, for violent Catherine McGuinness in the same family were one in 77. On appeal in disorder (the conviction against Ryan was later Sally Clark’s case, it was found that Prof Meadow’s successfully appealed). In the initial trial, Prof John evidence was “grossly misleading” and “manifestly Harbison, the then state pathologist, gave evidence wrong”. in relation to the deceased and suggested that the Following this successful appeal, the General level of alcohol in his blood on the night of his death Medical Council (GMC) in Britain initiated was not overly significant or influential in his death. disciplinary proceedings against Prof Meadow and Following a successful appeal of his manslaughter he was struck off the register. The Fitness to Practice conviction, Dermot Laide was to be retried and the Panel of the GMC found that Prof Meadow had case was thus opened up for review in 2006. At this “abused his position as a doctor” by giving misleading juncture, Prof Harbison had retired from his post evidence in the Clark trial and that the consequences and been replaced by Prof Marie Cassidy. When she of his errors could not be underestimated. reviewed the file for the case, Prof Cassidy came to an opinion different to that of Prof Harbison and Hickory dickory dock contended that the level of alcohol in Brian Prof Meadow appealed the decision to the courts and Murphy’s blood on the night of his death had in contended that the GMC was not entitled to initiate fact been quite considerable, that the assault on him disciplinary proceedings against him on the basis of had been relatively minor, and that his death was his expert testimony. He grounded this argument on significantly related to alcohol-induced apnoea. As a the common law immunity from suit, which attaches result of this conflict of evidence, the DPP decided to all witnesses – including experts – in relation not to proceed with the retrial. The controversy to their testimony in court. The rationale for this did not end there, however, as various experts from immunity appears to be the need to protect witnesses Ireland and abroad continued to discuss the scientific from civil or criminal proceedings so as to encourage evidence in the case in the media, with little expert them to give their evidence fully and freely to the consensus on the matter. court. This is seen, in the context of expert evidence, Of course, experts can and will have different as ensuring that experts are available to the courts and views of the evidence in any given case. This creates
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difficulties for a court, and in particular a jury court, qualifications, or if it should extend to persons with in arriving at a verifiable conclusion on the matters in experience-based knowledge also, question. The specifics of expert evidence, particularly • There should be a formal guidance code for expert evidence of an intricate medical, scientific or technical witnesses outlining their duties – especially the nature, can cause difficulties for lawyers too. The fact that the duty of the expert witness is owed to lawyer’s own dearth of understanding of the expert the court and not to the party by whom he/she is issues in question can impede their ability to properly instructed, question their own witness and lay the evidence of • There should be a ban on any fee arrangements that witness before the court, or properly challenge with expert witnesses that are conditional upon the the evidence of the witness for the other side. There outcome of a case, is a danger in expert evidence going unchallenged, as • There should be a set form and structure for expert mistakes may be overlooked and inconsistencies left reports, and unnoticed. In the fast-changing world of science and • There should be some consideration of the need to technology, it can be difficult for lawyers to keep pace retain, or otherwise, the expert witness’s immunity with the expert evidence likely to impact upon their from suit. cases, but it is imperative that they do so. It will be interesting to watch the progress of this Cards on the table consultation process and the final recommendations In relation to expert witnesses and expert evidence of the Law Reform Commission on this matter in generally, the LRC makes a number of provisional the coming months. Whatever they recommend, it recommendations in its consultation paper and seeks seems certain that, as science and technology continue submissions on the issue from interested parties (visit: to develop, expert evidence and expert witnesses will www.lawreform.ie, email: [email protected]). Among continue to play an increasingly important role in the the provisional recommendations are the following: courts. G • The term ‘expert’ ought to be defined – the commission seeks submissions as to whether or not Dr Yvonne Marie Daly is a lecturer in Law in the School of Law the term should be limited to those with specific and Government at Dublin City University.
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www.lawsocietygazette.ie 33 LAW SOCIETY GAZETTE JAN/FEB 2009 CAREER DEVELOPMENT NOBODY EXPECTS THE SPANISH Last issue, we here are few things people dread more than job interviews. Every day we prepare people who have interviews coming gave valuable up. Doctors, nurses, teachers, scientists, financiers – and tips on preparing obviously those in the legal profession. We see and prepare them all. And while the job specifications and the skills your CV in order T required vary from person to person, the mistakes made are common to get to a to all. People feel pressured to come up with the ‘right’ answers. It job interview. shouldn’t be that way. An interview can be many things, but it’s not an While the job oral exam. Clients constantly ask: “But what am I supposed to say?” Forget that attitude. Interviews should be treated as an opportunity to specifications show your potential employer that you have the skills and attributes and skills they are looking for. required depend Know the role on the position, After you’ve been called to interview, this should be your first step. Make sure you know the format of the interview (for example, Neil Connolly and competency-based, structured, ‘come in for a chat’). If possible, find Aoife Coonagh out who will be interviewing you. Do you need to bring or prepare a presentation? What subjects or competencies will be covered? say the mistakes How long will it be? If you’re unsure of any of these, then ask. It’s people make at important that you are clear on what to expect. It seems obvious – you should know the role. I had a client with me interviews are recently preparing to be interviewed for a senior academic post. The common to all first question I asked him was: “What is your understanding of the role of dean?” His answer? “I have no idea.” He had overlooked the most fundamental question – what will I actually be doing in this job? A few minutes spent scrutinising the job spec should give you a good insight into what is expected of you in the role. You need to be clear on where the role fits into this organisation, so further research in this area will be important.
What do they want? So what are they really looking for? Broadly speaking, potential employers are looking for three things: • Your capacity to do the job. In a word, competence. • Your motivation, determination and willingness to work hard. Can you add value to the organisation and contribute to its success? MAIN POINTS • The panel will want to be sure you fit into the team and the • Preparing for the organisational culture. interview • What’s the role? We have found that successful candidates have the ability to show all • What does the of the above throughout the interview. employer want? Think over your CV and your career. What have been the • What can you highlights that demonstrate you have the experience, skills and bring to the role? motivation required? What achievements have you had in your career? Remember, there may be things outside of your education and
34 www.lawsocietygazette.ie CAREER DEVELOPMENT LAW SOCIETY GAZETTE JAN/FEB 2009
INQUISITION! professional experience that are relevant to this job. Most clients ask us how to sell themselves. Once you are clear on exactly what it is the employer is looking for, and the skills and experience you have to match, you need to be confident in presenting this information in order to sell yourself at the interview.
First impressions In many ways, the most difficult part of the interview is the opening: you’re nervous (and the interviewing panel possibly is too!). The general nature of opening questions can cause its own problems. Often, an interview will start with questions about your career or CV. But what exactly do the interviewers want? Their purpose is twofold: they want to relax you and get you talking. In addition, they want to find out a bit about you, so they probe you about areas that interest them. So you need to take the opportunity to set the agenda for the interview.
What can you do or bring to the role? Selling your skills in an interview can be a skill in itself. The natural tendency if asked “Are you a good communicator?” is to answer, “Yeah, sure, I communicate every day in work, with barristers, admin staff, gardaí, clients…” This is a starting point. Any questions related to skills are opportunities to talk about you. You might mention your experience of using that skill in various situations. You may choose to talk about the attributes that make you good at using that skill. Make this a short summary. This does not prove that you are an effective communicator, however. In order to prove this (at least, as far as an interview allows), you have to give specific examples. You will find it difficult to think of such examples on the spot. Think of recent, relevant and memorable examples in advance of the interview. These should clearly demonstrate how you applied the skill. Be clear on the situation or task involved, what you actually did and the result you achieved. Did you achieve your objective? Take the interviewer through the story and show that you learnt from this experience. Gobnait’s Finally, link this experience to the job in question interview and how you will apply this skill in the organisation. for the library job did not If you are applying for a senior or management end well position, think of what your priorities would be
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your professional work experience. Add value to the information that is on your CV and tell them why you did particular courses of study, and set the context of the job role you had, mentioning the skills you developed. Highlight any particular achievements you want them to know about you at this stage. Keep your answers positive. Get comfortable talking through your CV and, most of all, make sure you finish by linking the overview of your career to the specific job you are going for – that is, why you? Be prepared for questions on the organisation. There are many ways you can find information on the company: their website, for a start. This will give you a handle on their key activities and an insight into their “Clients and be clear on how these relate to any particular client base. Speak to someone in the organisation if objectives that may be laid out in the job specification. you can – this will give you a valuable insight into the constantly ask: You need to get very comfortable with the content company culture. Google News can provide you with ‘But what am of your examples. Write your examples down on a information on any current issues, developments or piece of paper as a series of bullet points. Now talk challenges the organisation is facing or is involved in. I supposed to them through. Out loud. Talk through them again. Almost every interview finishes with: “Do you have say?’ Forget Practice until you can comfortably talk through each any questions for us, or is there anything you would of your examples or answers without having to refer to like to add?” If you have genuine questions that you that attitude. your notes. This is a crucial step in your preparation. can only get an answer to by asking the panel, go Interviews should Do not wait for the interview to hear yourself say any ahead. In addition, and most importantly, prepare a of this for the first time. closing statement that reiterates how you can add value be treated as to your new employer. an opportunity Prepare for key questions Recently, I asked a client to take me through their Dress and stress to show your CV, highlighting the skills they would bring to the Dress conservatively. Keep make-up, perfume, potential role. Five minutes later (I left the DVD recording), jewellery and aftershave to a minimum. Smile and he was only on his second job – and we were still only engage with your interviewers so that you establish a employer that at 1992. After the interview, as we were reviewing rapport. You will be nervous, but this can be a good you have the the DVD, my client said, “Stop the disc. I’m boring thing, as it can prevent you from getting too relaxed myself!” during the interview. Keep your nerves under control skills and Talking through your CV should not be like by sipping water throughout the interview and taking attributes they this. The same applies if they ask you: “Tell me some deep breaths before you meet the panel. about yourself.” Your answer should be a concise, Finally, if you ask any interviewer what separates the are looking for” chronological guided tour through your career to date, top candidate from the rest of the pack, they will tell outlining your academic achievements and describing you three things: • They clearly understand the job role, • They know the skills and experience they will bring PREPARING FOR THE INTERVIEW to the role, • Know the role – what will I actually be doing in this job? • Their enthusiasm and motivation for the job is • What does the employer want? Principally, three things: evident throughout the interview. a) Your capacity to do the job. In a word, competence. b) Your motivation, determination and willingness to work hard. Can you add value You’ve been called to interview on the basis of to the organisation and contribute to its success? your CV or application form. On paper, you have c) The panel will want to be sure you fit into the team and the organisational what it takes. So has everyone else who has been culture. called. Your job on the day is to show the panel just • First impressions – be prepared for opening questions. what it is that puts you head and shoulders above • What can you do or bring to the role? the other candidates. Make every minute of your • Practice – get comfortable with the content of your examples. interview count. You get one shot to show your • Prepare for key questions. potential employer just what it is you can bring to the • Dress conservatively and use stress constructively. organisation. So prepare, rehearse, relax, and deliver. • What separates the top candidate from the rest of the pack: Best of luck! G a) They clearly understand the job role, b) They know the skills and experience they will bring to the role, Neil Connolly is career consultant and Aoife Coonagh is head of c) Their enthusiasm and motivation for the job is evident throughout the interview. career development in Carr Communications. Neil delivers one- to-one CV preparation and job-interview coaching.
36 www.lawsocietygazette.ie PROFILE LAW SOCIETY GAZETTE JAN/FEB 2009
ON THE FRONT LINE In part 2 of his interview, Colin Murphy talks with the Chief Inspector of the Garda Inspectorate, Kathleen O’Toole, about the dangers of ‘less lethal’ weapons, dealing with ‘barricade incidents’, and the importance of seeing uniformed gardaí ‘out on the front line’
athleen O’Toole had been Boston police An officer took aim at a rioter who had thrown a commissioner for just eight months projectile towards police. He fired, the rioter ducked, when one of her officers shot and and the pellet hit a young woman, who was standing killed a 22-year-old college student at a behind him, in the eye. Kbaseball championship celebration. The Kathleen O’Toole had already been up for 38 Boston Red Sox had just beaten their arch-rivals, the hours when she was told about the injury. “I called MAIN POINTS New York Yankees, to win the 2004 baseball League everybody in. We called in internal affairs. I said, let’s • Using the least Championship Series, their first victory in 87 years. start the questioning right now.” force necessary More than 80,000 people took to the streets near the Twelve hours later, the young woman, Victoria • Enhancing police stadium, and rioting broke out. Snelgrove, died. “When I got the call that she’d safety without “They were lighting the tails of the police horses passed away, my natural instinct was to ask for the resort to arms on fire, some of the kids,” she recalls, “and one of the parents’ number. I got the father on the phone. • Visibility in the police horses was stabbed.” They were in the process of driving home from the field and the use The police went in, armed with ‘less lethal’ hospital.” She told the Snelgroves she would like to of technology pepper-gun devices that had been recently supplied. meet them in person, and they said she could call to
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WHEN IRISH EYES ARE SMILING Kathleen O’Toole follows in a long line of Irish and Irish-American police Their Irish roots were “a huge deal” in the family, she says. officers in Boston. Her husband, also a police officer, is a few years “I think our grandparents worked harder to preserve our culture older and, she says, remembers when “most of the senior cops were all because they wanted to keep the memories of home alive. When Irish immigrants”. a letter from Ireland arrived, my grandmother would call her three Her grandmother, Brigid Gallagher, was from just outside Athlone, Co daughters. They’d all have to go to her house immediately, she’d Roscommon; her husband had a grandmother from Drumsheel, near cook a big meal, and after the meal she’d stand up and read out Cong, Co Mayo. They have more family in Ireland than in the US. the letter.”
the house. O’Toole drove straight there. decency of people,” O’Toole says. “I had to take a deep breath walking up to that Reflecting on the underlying issue, the use of ‘less door. I’ve had to do that before – inform people of lethal’ weapons by police, the general principle is horrible tragedies – and it’s not easy. The mother simple: “On a continuum of force, we always use the came to the door, and within seconds I was embracing least necessary.” But there is “no panacea”, she warns. her and she was crying uncontrollably on my Though the Snelgrove killing was “a horrible, freak shoulder. accident”, the term ‘less lethal’ nonetheless implies “I spent about an hour with them before anybody that such weapons will be lethal some of the time. else arrived, before the media arrived. They brought “What’s more me into [their daughter’s] room – she was halfway Barricade incidents through writing a paper for school.” O’Toole was tasked with examining this issue in the important than O’Toole went back to police HQ and called a press context of Irish policing shortly after she arrived to policing in a conference. She hadn’t slept in 40 hours. “I stood up take up her position as Chief Inspector of the Garda in front of the cameras and I said, ‘The Boston police Síochána Inspectorate in 2006. The Barr Tribunal, democratic department takes full responsibility for the death of which investigated the killing of John Carthy by society? The Victoria Snelgrove.’ The lawyers said, ‘What are you members of the Emergency Response Unit after doing?’” Carthy had barricaded himself into his house with a abuse of O’Toole announced an independent investigation. shotgun at Abbeylara in 2000, had recommended a police power is Ultimately, the city paid a $5 million wrongful-death review of ‘non-lethal’ options for the gardaí. settlement to the family. A number of officers were In the Garda Inspectorate’s second report, Review devastating” disciplined, though none charged. The pepper guns of Practices and Procedures for Barricade Incidents, they were withdrawn from use. recommended having ‘second-tier armed units’, O’Toole is still in touch with the Snelgrove family. endorsed the issue of tasers to the Emergency When she asked them if she could attend the funeral, Response Unit, and advocated for incapacitant she was asked to come to the wake and the family spray, she says. Abbeylara was “a case of not enough requested a police escort for the cortege. The father, options”, she surmises. “They didn’t have decent less- Rick Snelgrove, later told reporters, “She was just a lethal options and they didn’t have the appropriate wonderful lady. She has a daughter, too, and she knew training in procedures.” how we felt.” While the inspectorate was studying this, there “I learned so much from that experience, about the was another armed ‘barricade’ incident in Gort.
QUICK-FIRE ROUND Inspiration/influence? My granny from Co Roscommon. Her sister has leadership models. The military has a leadership model. We draw Annie was the one heading for America. The night of the ‘American from those but, in policing, we have never created our own unique wake’, Annie backed out and my grandmother put on her clothes leadership model.” the next day, took her ticket and left for America. I can’t imagine the What do you like least about your job? That I can’t go out on the front courage that took. We used to listen to her stories for hours and lines and be a police officer again. The thing that I like least about it hours. is the thing that I like most about it. It’s really nice to be in a position Best advice for lawyers? Go where the truth takes you. where I can sit back and reflect and be more strategic. In policing, a What are you reading? A lot of stuff on ‘leadership’. Especially new crisis emerges every day, and it’s often challenging to step away Joseph Raelin’s Creating Leaderful Organisations: How to Bring Out from that crisis management to focus on a more strategic approach to Leadership in Everyone. I’m doing some academic research. Most of business. But at the same time, that’s the part of the business – that the academics I’ve worked with in the past have focused on sociology adrenalin addiction – that keeps it so interesting. and criminology. I’m personally focused on business, because I think Thing to do before you die? Oh, I plan to do it all before I die! I don’t that’s the greatest weakness we have in policing. The private sector plan to have any unfulfilled ambitions.
38 www.lawsocietygazette.ie PROFILE LAW SOCIETY GAZETTE JAN/FEB 2009 PIC: LENSMEN
Garda Inspectorate on the O’Toole recalls: “The police officers who responded and ignore everybody, or I could walk the beat and beat! (Left to right): Deputy Chief Inspector Robert went to the station and went to a locker. They had get to know people, get to know the local businesses Olson (formerly chief of one weapon, an old six-shot Smith & Wesson, and and maintain good relationships with people,” she police for the city of they had one vest. One vest, one gun, between three says. She chose the latter. “I always like to refer to Minneapolis, Minnesota), people. You can’t go up against somebody with a it as a police ‘service’ as opposed to a police ‘force’, Chief Inspector Kathleen O’Toole and Deputy high-powered rifle with a six-shot revolver. For their because force should only be a very small part of what Inspector Gwen Boniface safety and for the safety of people at the scene, they we do – and used only as a last resort. (formerly police need to be properly equipped and trained. “People watch TV and they think policework, commissioner of the “I really appreciate the fact that the police here are especially in America, is all about gunfights and Ontario Provincial Police) routinely unarmed and I hope that will always be the car chases and felony work, when, in fact, most case. I worry about their safety, but I hope that we policework is about providing services to people, can continue to make recommendations that enhance 24/7, and helping people to solve problems, and being their safety without resorting to arming them.” there when nobody else is available to them.” The inspectorate is currently working on a study Bostonian insights of resource allocation in the gardaí. This will have Over the course of a two-hour interview, O’Toole “a real focus on visibility in the field”, says O’Toole. ranges widely across current issues in international “We can’t lose sight of the fact that that’s the lifeblood and Irish policing, but much of it is rooted in her of any police organisation – the uniformed guard out early experiences in Boston, and the insights she there on the front line.” gleaned there. Nonetheless, she has pertinent things to say about “When I was a young police officer, walking the the administration of the force. “If you have an beat in downtown Boston, I could just walk the beat organisation with 15,000 people and a billion-and-a-
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half-euro annual operating budget, you need to run she started in the late 1970s, “there were still a lot it like a business. The people who come up through of ‘old-time’ cops, who drank on the job”. She once the sworn ranks of police organisations are experts in had a partner who had an alcohol-provoked seizure policing. They are not trained to manage billion-and- while on patrol with her. She administered first aid, a-half-euro budgets. You need to have people around then drove him home, and refused to work with him who have that experience so that the police managers again. can focus on the police work. You do not need sworn “There wasn’t as much scrutiny in policing, as police officers managing IT, finance, human resources much accountability. I saw people who probably used “The term and things like that.” a little more force than was necessary. I witnessed ‘less lethal’ Technology is another pressing issue. “I was situations where there was a fine line, and it could working in an environment where we used to have been that the person didn’t have appropriate nonetheless download gang databases on PDAs (handheld training or made a poor judgement call.” implies that such computers), so the people out in the field could She never saw anybody deliberately beaten up compare the mugshots with the people they were by police, she says, but would urge reporting such weapons will be talking to. behaviour immediately. “You need to confront those lethal some of “With the click of a mouse, I was able to pull up situations right away – either as a supervisor, or tell a a map showing where every crime had occurred in supervisor. the time” the last 24 hours and I could scroll down and click “People used to talk about that ‘thin blue line’, but on the report or the mug shot of the person who was you know what, those days are over.” arrested. It is crucial, she says, to have accountability and “It’s not rocket science. That’s pretty much transparency in the force, and to have whistle- industry-standard in a lot of police forces.” blowing protection regulations in place. “We have to be vigilant and look for other potential weaknesses. ‘Accountability is crucial’ “What’s more important than policing in a She reflects also on the issues of corruption and poor democratic society? The abuse of police power is discipline in police forces. She recalls that, when devastating.” G
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40 www.lawsocietygazette.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JAN/FEB 2009
Solicitors and firefighters conspire to break record PD courses don’t have to fire service. Regrettably, our Cbe boring! The Limerick heroes were forced to abandon Bar Association proved that their attempt due to horrendous recently, with a novel twist that weather conditions, which made combined ongoing professional it just too dangerous for them development with an attempt to slide down the pole after each to break a Guinness World climb! In any event, the €2,500 Record – while raising cash for raised will prove very useful to charity. the ABA Bluebell School. Over 60 legal practitioners The CPD charity event was from the Munster region organised by Liam Moore of The Guinness World Record attempt might have failed this time – but the gathered in the Marriott Hotel, the association’s CPD Board, ABA Bluebell School was delighted with the €2,500 raised by Munster- Limerick, on 11 December with the blessing of new bar based solicitors and Limerick firefighters. (Front, l to r): Claire Kennedy 2008, to take part in a CPD association president, Elizabeth (Marriott Hotel), Elizabeth Walsh (president, LBA), Paul Knapp (Limerick course titled ‘Data protection Walsh. Fire and Rescue), Liam Moore (CPD board), and (back row) the gallant members of Limerick’s Fire and Rescue Service law and good practice’. The “I was only too delighted
speaker was none other than to organise this seminar for PIC: GEORGE MAGUIRE Data Protection Commissioner such a worthy charity and to Billy Hawkes, who, as it be associated with the great happens, is a Limerick man. work of our fire service men and As an interesting aside, the women,” Liam said. “Special solicitors were encouraged to thanks are due to Mr Hawkes lend their financial support for kindly giving of his time to Limerick firefighters who to travel to Limerick to speak would attempt the following to our members. The huge day to break the Guinness attendance at this CPD event World Record for a 24-hour is testament to the importance endurance ladder-climb of data protection to our At the annual dinner of the West Cork Bar Association, held at Dunmore House Hotel, Clonakilty, on 6 December, a special on O’Connell Street. The practices. I think many eyes were presentation was made to Edward O’Driscoll, solicitor, of PJ current world record stands at opened by what Mr Hawkes O’Driscoll’s, Bandon, by his West Cork colleagues to mark his 60th 109.5km, travelled on one fire- had to say! Thanks, too, to all year in practice, Michaelmas 1948 to Michaelmas 2008; (l to r): service ladder by a team of ten our colleagues who attended and Circuit Judge Con Murphy, District Judge Brendan Wallace (retired), President of the WCBA Edward O’Driscoll (solicitor at Richard Barrett), firefighters in 24 hours. This donated, and to the Marriott District Judge James McNulty and District Judge Con O’Leary was set by the New Zealand Hotel for their excellent venue.” Brendan McCann Memorial Cup goes Laganside n a cold and windy Novem- Ober afternoon in Corrigan Park, Belfast, the Belfast Solici- tors’ GAA Society met the Law Society of Ireland GFC – and won – in a historic and unique game. The occasion was the esta- blishment of the Belfast Solici- tors’ GAA Society. Corrigan Park was chosen as the venue to host the first cross-border GAA match between both societies. The match had a special poignancy, as the winners were to be awarded the inaugural Brendan McCann Memorial Cup, in memory of the late Belfast-based solicitor and GAA stalwart. Lord Mayor of Belfast Tom ‘Team of the Millennium’ Sean the Law Society of Northern The many supporters at the Hartley; retired solicitor, three- O’Neill; James MacGuill (then Ireland), senior representatives match included the Lord Chief time All-Ireland winner and president of the Law Society), of both societies, together with Justice, Sir Brian Kerr QC; the right half-forward on the GAA Donald Eakin (president of members of the McCann family.
www.lawsocietygazette.ie 41 LAW SOCIETY GAZETTE JAN/FEB 2009 PEOPLE AND PLACES
Colleagues rally behind Stuart Mangan Appeal rom the very beginning internet banking. (Please let us Fat school in St Colman’s know if you use this method so College (Fermoy), Rockwell that we can follow up with you.) College, University College See details in panel below. Cork and Ecole Superieure de Commerce (Paris), Stuart Mangan has always shown a CONTACT DETAILS wonderful ability to look out Euro (€) AIB bank details for others and bring people A/C name: Stuart Mangan Trust together. Stuart completed A/C no: 17569101 five years of university studies, Sort code: 93-60-81 graduating with a law degree Address: AIB Bank, Pearse from UCC and a master’s in Square, Fermoy, Co Cork European business from ESC IBAN: IE63AIBK936081175 Paris, before he was hired on 69101 a fixed-term contract on the Swift code: AIBKIE2D trading floor of BNP Paribas in London. Stuart in action while playing with UCC against Shannon. Irish international Sterling (£) AIB bank details On Saturday 5 April 2008, Tony Buckley can be seen (back, right), who played for Munster against New A/C name: Stuart Mangan Trust while playing rugby with Zealand last November A/C no: 11847131 his club Hammersmith and Sort code: 23-92-84 Fulham RFC in London, Stuart into the circumstances ahead. Participating teams include (24) suffered a sudden but The horrendous injury he Blackhall 2008, Blackhall For cheques devastating spinal injury. Sadly sustained has left an indelible Old Boys, King’s Inn, UCD Stuart Mangan Trust, 23 Avoca this sporting accident has left mark on his life and on the lives Smurfit MBA, Royal College of Park, Blackrock, Co Dublin. him totally paralysed from the of his family and many friends. Surgeons and a Stuart Mangan neck down. He requires 24-hour As part of the ongoing fund- UCC Select team. Stuart Mangan Trust – trustees care for the rest of his life. raising for the Stuart Mangan For further information, Andrew Butler (chartered Appeal, a rugby tournament, contact Eamonn on: 086 807 accountant) Monumental challenge ‘The Stuart Mangan Cup’, has 8976. John A O’Grady (dental surgeon) Emotionally, he is showing been organised. This will take Francis J Murphy (solicitor) incredible courage and place on Friday 20 February at Contributions Prof Michael Molloy (consultant determination to deal with this 6.30pm in Donnybrook. Tickets For financial contributions, you physician) monumental challenge and face cost €10. can transfer any donation via PIC: LENSMEN
Pictured at the CPD Focus Skillnet launch, which took place on Friday Representatives of the Kosovo Chamber of Advocates (KCA) visited 5 December in the Radisson SAS Hotel in Dublin are (back, l to r): Ireland on a study visit in December. The visit was part of a ‘rule of James O’Sullivan (chairman, Skillnet Steering Committee), Deirdre law’ proposal to run a professional practice course in Pristina for KCA Keane (programme support manager, Skillnets), Conor MacGuill members. The group was shown how professional legal education works (Skillnet Steering Committee member), Michelle Nolan (Skillnet Steering in the Law Society and King’s Inns. The visit was co-funded by the KCA, Committee secretary) and Ken Murphy (director general). (Front, l to r): ABA, the Law Society and King’s Inns. The participants included (back, l Gerry Doherty (senior vice-president), Dr Bill Cullen (guest speaker) and to r): Florin Vertopi, Daragh O’Shea, Ibrahim Dobruna, Musa Dragusa, TP Attracta O’Regan (head of CPD Focus) Kennedy and Kieran Falvey. (Front, l to r): Eva Massa and Fatmir Kutllovci
42 www.lawsocietygazette.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JAN/FEB 2009 Leitrim marks ALL PICS: BRIAN DUIGNAN, DUIGNAN PHOTOGRAPHY judge’s retirement lmost 60 practitioners Speeches were made by Afrom Leitrim and the Judge McGuinness, Judge surrounding counties attended a Geoffrey Browne, Judge Conal function on Friday 5 December Gibbons, Judge Kilraine, the 2008 to mark the retirement President of the Leitrim Bar of Judge Oliver McGuinness, Association, Noel Quinn, writes Doireann Ní Riain. In and District Court clerk addition, a special presentation Leo Mulvey. Presentations was made to Judge Kevin P were made on behalf of the Kilraine on his appointment. bar association to Judge Bernadette McTiernan (Walter P Toolan & Sons), Michael Keane The function was held in Lough McGuinness and Judge (Flynn & McMorrow) and secretary of the Leitrim Bar Association, Rynn, Mohill, Co Leitrim. Kilraine. Doireann Ní Riain (Walter P Toolan & Sons)
Bride Quinn (Delaney Quinn Solicitors), Judge Kevin Kilraine, Noel Quinn (Delaney Quinn) and Kathleen McCabe Gibbons (George V Judge Geoffrey Browne, Judge Kevin Kilraine, Judge Oliver McGuinness Maloney Solicitors) and Judge Conal Gibbons
John McNulty (Kevin P Kilraine & Co Solicitors), Andrea Reynolds Kieran Ryan (Kelly & Ryan Solicitors), Gabriel Toolan (Walter P Toolan & (Brendan T Muldowney Solicitors) and Cliadhna Sheridan Sons) and James Faughnan (CL Flynn & Co)
www.lawsocietygazette.ie 43 LAW SOCIETY GAZETTE JAN/FEB 2009 OBITUARY
Sir John Mortimer 21 April 1923 – 16 January 2009
ir John Mortimer QC, barrister and writer, died – “she who must be obeyed” – or in court before the Circus at the age of 85 on 16 January 2009. His career (Circuit) judges, or getting up the noses of his fellow as a writer preceded and exceeded his practice at barristers in chambers, Rumpole always entertained and Sthe bar, which lasted from being called in 1948, never let friend or foe interfere in his defence of his clients. taking silk in 1966, to his retirement in the early 1980s. In Prior to Rumpole’s creation in the 1970s, Mortimer had going to the bar, he followed in his father’s footsteps – his been a novelist in the 1940s and ’50s and a TV and stage father Clifford was the Mortimer on Wills, Probate and playwright in the ’50s, ’60s and ’70s, most famously with A Divorce. Voyage Round my Father, which hilariously and poignantly The young Mortimer specialised in his father’s areas dealt with the often-strained relationship between father while a junior counsel, before taking up the more exciting and son. Other writing pre- and post-Rumpole included areas of criminal and obscenity defence on being elevated over 30 TV plays, film screenplays and many radio plays, as to Queen’s Counsel. In 1968, he successfully defended the well as a number of short autobiographies starting with the publishers of Last Exit to Brooklyn on appeal from their well-titled Clinging to the Wreckage. conviction of obscenity, which started a run of obscenity A reluctant lawyer, Mortimer always thought of himself cases, often with Geoffrey Robertson, who remembers primarily as a writer and agonised that he was wasting Mortimer the lawyer as “my own forensic father, teaching his talent for writing while at the bar, a profession for by example that the art of cross-examination is not to which his father, in Voyage Round my Father, tells him: examine crossly and that it is a fearful thing to have “No brilliance is needed in the law. Nothing but common responsibility for another’s fate”. sense and relatively clean fingernails.” One of the more famous quotes about Mortimer has Without the law, there would have been no Rumpole, its origin in a comment he made to a jury towards the and we must thank Mortimer Senior for persuading his end of his career, congratulating them on their fortitude son to follow him into the second-oldest profession and in sitting through one of the most boring trials ever to be John Mortimer for creating the world’s favourite lawyer. run. The judge responded: “It may surprise you to know, Sir John Mortimer, QC, writer, born 21 April 1923, members of the jury, that the sole purpose of the criminal died 16 January 2009. Married twice, first to Penelope law in England is not to entertain Mr Mortimer.” Fletcher, 1949 (divorced 1972), and then to Penelope But the judge was wrong – Mortimer created, in Gollop, who survives him, as do their two daughters. his famous literary character, Rumpole of the Bailey, a He is survived by one son and a daughter from his first lawyer that people could warm to and one who provided marriage, and a son with Wendy Craig. G entertainment in the criminal law for generations of TV viewers and readers. Through his spats with his wife, Hilda KW
44 www.lawsocietygazette.ie STUDENTS’ PAGE LAW SOCIETY GAZETTE JAN/FEB 2009 student spotlight
Cork rebels rout Dublin squad he second annual Cork goalkeeper had to be quite an TPPCI v Dublin PPCI soccer advantage. Like Timofte against match took place in Cork on Bonner in Italia ’90, Cork just 15 November 2008. In front couldn’t get the ball past him. of a sizeable crowd of Ultimately Dublin ran out supporters, the game was played narrow winners. Marie Lou at a fast tempo. On the day, Heavey, Mary O’Dwyer, Katie Cork was just too strong for Joyce, Sarah Cloonan, Laura Dublin and ran out eventual Spellman and Sibeal Keane winners at 6-1. Cork’s scorers played well for the Dubs, while included Brendan O’Sullivan Sinead Forde, Patricia Murphy, (3), Con Aherne (2) and Neil Niamh O’Connor, Nicola Coffey (1), while Brian Murphy Walsh and Nessa Foley did (1) scored for Dublin. Cork proud, with Rebecca Foley Cork’s PPCI 2008 ladies scoring a great late goal for the team, managed by Ray ‘Steven Leesiders. Staunton’ McGrath, also took Cork and Dublin PPCI on Dublin the same day. The students met up afterwards game was fiercely competitive. Cork’s PPCI 2008 ladies team fell foul of Dublin’s secret weapon – for a fun-filled social evening a male goalkeeper! (Back, l to r): Sinead Forde, Catherine Murphy, The ‘make-up’ of the Dublin Rebecca Foley, Orla Cronin, Sharon Kearns, Niamh O’Connor and that continued into the early team however was somewhat Georgina O’Halloran. (Front, l to r): Nicole Derham, Nicola Walsh, Patricia hours that offered some great suspect – Dublin’s male Murphy, Ray McGrath (manager), Kate O’Brien and Nessa Foley networking opportunities! Brendan’s a safe pair of hands! reland’s intermediate soccer Blackhall Isquad has qualified for the UEFA Regions Cup Finals Builders next summer – thanks to the safe hands of trainee solicitor say thanks! Brendan O’Connell, writes Colin O’Brien. Brendan is a trainee he 2007 and 2008 solicitor with PJ O’Driscoll & TBlackhall Builders teams Sons on Cork’s South Mall. He wish to express their thanks jetted off to Milan, Italy, with the through the Gazette to all Irish team last October for the members of the profession, qualifiers. firms and colleagues who Ireland faced the so-called supported them in their ‘group of death’, being pitted fund-raising efforts to against England, Scotland and provide sponsorship for the host nation (and hot favourites) house-building project in Italy. Donning the number one Brendan dons the yellow jersey for Ireland Zambia. jersey, Brendan found his usual Your donations have had sparkling form to turn in two Brendan, who plays his The Corkman boasts an a major positive impact on flawless displays against England club football with Munster impressive CV and has had the lives of the 17 families and Scotland. He played a huge Senior League side, Avondale cross-channel interest from for whom houses were part in Ireland topping the United, has been the number clubs like Manchester United, provided. group and qualifying for the one international goalkeeper Aston Villa and Preston North The 2009 team is already finals. Next summer, the last since breaking into the squad in End. The former UCC soccer preparing for the July 2009 eight in Europe will battle it out 2004. He has been nominee for club captain was a member of build, of which more in for the top prize in European ‘International Player of the Year’ its historic Collingwood Cup future issues of the Gazette. amateur football. for the past two years running. three-in-a-row team.
www.lawsocietygazette.ie 45 LAW SOCIETY GAZETTE JAN/FEB 2009 BOOK REVIEW books Inheritance & Succession: the Complete Irish Guide John G Murphy and Jason Dunne. Liberties Press (2008), Guinness Enterprise Centre, Taylor’s Lane, Dublin 8. ISBN: 978-1-905483-40-2. Price: €13.99 (paperback).
n his foreword to this book, the next three but suchsuch practitioners are IMr Justice Robert Barr notes chapters. Issues unlikelyunlikely to be the target that “the authors have provided discussed include audience.audienc Solicitors the public with an admirable the minimisation returningreturni to the topic service”. Inheritance & Succession of tax (ever a client followingfollowi time spent in is indeed a book for public favourite), the need otherother fieldsf will find the consumption and, though for a considered bookbook tot be a very useful subtitled ‘The Complete Irish succession plan, refresherrefresh tool before Guide’, should not be confused family law, and a weightierweight consideration with being an authoritative useful overview of of the topic. To the academic or practitioner- succession law. generalgener public, however, focused commentary on Quite helpfully, InheritanceInherit & Succession could succession law. Indeed, the book the book gives be iimmenselym valuable, delves into a wide spectrum of guidance for the givingiving as it does a well- fields, both legal and non-legal public on the rounrounded guide to the alike. inherent risks ttopicsopic covered in a The book opens with attaching to DIY willslls rreadilyeadi comprehensible a lengthy chapter entitled and makes a simple format.form Whether the ‘Life’, which deals with a wide but convincing case book can overcome the variety of topics from wealth for the involvement of publicpub suspicion that management to the creation a trained professionalal ‘planning‘plan for death of a life plan from infancy to and the incurring of invitesinvi the Grim Reaper’ advanced years. The chapter reasonable fees in thehe clients,clients, includingincluding care in llatteratter remains to bbe seen, but the has the feel of a self-help book preparation of what ““maymay be the years,years nursing home costs and book is certainly cert a worthwhile rather than a legal tome, though most important document you subvention, the potential loss of addition to the reading material there are nuggets of wisdom ever sign”. mental capacity, preparation for in every solicitor’s waiting interspersed throughout. Beyond the treatment of death, funeral organisation and room. G Subsequent chapters will wills and succession law, the administration of the estate. feel more familiar to the legal book proceeds to deal with Seasoned succession law Richard Hammond is a partner at reader, with tax, succession a number of topics that can practitioners may take little Hammond Good, Solicitors, Mallow, and inheritance occupying often be somewhat taboo with from Inheritance & Succession, Co Cork.
46 www.lawsocietygazette.ie BRIEFING 47 G
JAN/FEB 2009 JAN/FEB report
www.lawsocietygazette.ie The Council noted that Ms its next meeting for circulation local barfor the views of the associations. Report of the Independent Adjudicator contentsThe Council noted the of the report of the Independent yearAdjudicator for the ending 30 September 2008. In the Council noted particular, statement that: “I Ms Casey’s have carried out the duties of the Independent Adjudicator position single-handedly and on a part-time basis with complete passion for delivering a professional, fair and impartial service, and therefore believe the proposed Office of the Legal Services Ombudsman should not be a substantial additional financial burden on members (solicitors and barristers) of either the Law Society or the Bar Council. Furthermore, given that much of the proposed Legal Services Ombudsman’s role is similar to what I currently do, I guesstimate that the appointment of an ombudsman with one administrative assistant should be sufficient.” Casey had concluded that: “I have no adverse comment to advise throughout the annual review period and, as such, believe that the public are treated fairly and reasonably with well-considered investigations occurring by professional staff in the Law Society.” COLLEAGUE LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW council 2,065 for a solicitor 2,433 for a solicitor € € THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY INDEPENDENT OF THE LAW TOTALLY Mr Kennedy noted thatMr Kennedy noted 01 284 8484 The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional CONSULT A CONSULT qualified less than three years. Proposed prohibition on solicitors giving undertakings on their own behalf The Council noted that there was almost universal consensus within the profession that a solicitor should be prohibited from giving an undertaking a on his own behalf. However, much more difficult question was how far the Society should go beyond that prohibition. It was agreed that a draft statutory instrument should be prepared for approval by the Council at qualified more than three years, and it was not intended that theit was not intended thetask force would address suchspecialist areas of practice, law, as personal injuries, family but would employment law, disputesaddress the question of ofresolution in the context werebusiness disputes, which relevant to all solicitors’ firms. In due course, submissions would be invited from Council members and members of the profession. Approval of practising certificate fees for 2009 Following detailed presenta- finances tions on the Society’s by the chairman of the Finance Committee and the director of finance, the Council approved the practising certificate fee for 2009 of In this context, the task forceIn this context, the task profession of the full panoply of dispute resolution solutions – not only litigation, including litigation in the Commercial Court, but also negotiation, mediation, arbitration and other dispute resolution options where appropriate, profession is trained and equipped to help clients select and implement the most appropriate and effective strategy and dispute resolution solution for the particular situation, to act as arbitrators and mediators and the training and education requirements in that regard, develop their role and better serve their clients, which the Society can support the profession in relation to the resolution of business disputes (whether in relation to training and development, assisting in the appointment of arbitrators and mediators, or otherwise), and systems can best be structured to deliver the best support to the profession. in relation to the resolution ofin relation to the resolution commercial business disputes. will consider: The effective use by the a) How best to ensure that the b) Opportunities for solicitors c) How solicitors can adapt to d) e) Recommendations for ways in internal How the Society’s f) (The range of business disputes involved would not be limited to Commercial Court disputes and would also encompass judicial review proceedings of a commercial nature, regulatory proceedings, construction dis- putes, domestic and international arbitration.)”
Patrick Dorgan Gerard Doherty
The Council agreed to
4 December 2008 4 December Law Society Council meeting, meeting, Council Society Law Business Disputes Resolution Force Task The president noted the appointment of the Business Disputes Resolution Task Force, which would be chaired with the by Mr Liam Kennedy, following terms of reference: adjourn six of the recommenda- tions for further discussion bet- ween members of the task force and members of the Complaints and Client Relations Commit- tee. The Council approved the remaining recommendations of the task force. consider developments “To and trends in business dispute resolution in Ireland and and to explore internationally, opportunities for Irish solicitors to develop their practices and better serve their clients’ needs The president noted thatThe president noted at thecontributions made November Council meeting had indicated that the majority of the recommendations of the task force were non- contentious, while a small number would require further consideration. Simon Murphy said that, with the recent move of the Regulation Department to new premises, together with the commencement of a lay majority on the committee from 1 January 2009, the committee required some time to adjust to its new circumstances and to assess the resource and workload implications of a number of the recommendations. Seconded: Motion: report of Complaints Force Review Task the‘That this Council approves Review of the Complaints report Force.’ Task Proposed: : 4
, 3 establish whether the client can paraphrase in broad terms the explanation given earlier, Be aware of the danger in asking questions that give rise should take care to fully understand the nature and effect of the transaction and have all the relevant documentation and necessary background information, including details of family members, Obtain corroborative informa- tion where necessary, including a diagnostic assessment of the client (that is, medical evidence), evidence any medical Treat obtained as supplemental to, the and not a substitute for, legal tests for capacity, Be fully aware of the legal test for assessing the capacity required in the particular context, Ensure that the nature and effect of the transaction is explained to the client in broad terms and simple language, After a reasonable time frame, appreciate to which the claims he ought to give effect. Some useful pointers in • • • • • • • Assessment of testamentary capacity can be a difficult matter. Eccentricity or capriciousness a does not necessarily indicate lack of testamentary capacity. Further, testamentary is capacity not an exact science. A client who is unwell may have lucid intervals and sufficient testamentarycap- acity at the time of instructions, but later become incapable when it comes to reviewing his/her will for execution. Persons assessing capacity assessing capacity are The formalities for . The 2
Succession Act 1965 Where instructions are When taking instructions for A person may have 1 such instructions without the benefit of an initial interview with essential the elderly client. It is personal that a solicitor makes contact to ensurethat the instructions received are those of the client, and, if concerned, arranges to interview the testator to obviate the possibility of fraud, assess the testator’s capacity, and ensure that comprehensive instructions are freely obtained. or otherwisefurnished by letter, in writing, from someone other a solicitor than the testator, is not in a position to proceed without first making contact with the testator to ascertain if they wish to be advised and to give instructions in the matter. 3. Capacity. a valid will are set out in section 77 of the which includes a requirement that the person “is of sound disposing mind”. the making of a will, it is therefore necessary to determine whether or not the client has testamentary Solicitors should be capacity. aware that testamentary capacity and mental capacity are not one and the same. Banks v Goodfellow effects, The extent of the property of which he is disposing, and Be able to comprehend and a) b) c) The nature of the act and its capacity for some legal purposes but at the same time lack capacity for others. Testamentary capacity is a legal test and requires a high Testamentary level of capacity. or broadly the test of capacity, ‘sound disposing mind’, is set out in testator must understand: When acting Where a solicitor is asked to If instructions are received by that the solicitor ensures that a full and thorough knowledge of the testator’s circumstances is acquired before proceeding. be given Consideration should elderly to the possibility that the own person may have his/her solicitor but may have been diverted to another solicitor in order already to bypass advice received. Such advice, while it would have been given in the best may not interests of the testator, be deemed appropriate by family or friends. Where an elderly client is being referred in such circumstances, full enquiries should be made and a solicitor should be slow to proceed. attend a testator in a hospital or nursing home, it is important to ensure that such attendance is, in fact, at the behest of the client and not at the instigation of a third party. 2. Undue influence. for an elderly client, a solicitor must be alert to the possibility of undue influence and, where there are grounds for concern, take all possible steps to ensure that the client is interviewed on his/her own. Extra care should be taken in situations where the presumption of undue influence will be particularlyrelevant, due such as where the testator, or illness, relies to age, frailty, upon relatives or carers for day- to-day care and assistance or for transport to and from shops, church services, social functions or medical appointments, and so on. or otherwiseletter, in writing, a solicitor must consider carefully whether it is prudent to act on . notes JAN/FEB 2009 JAN/FEB
It is important hese guidelines are not forintended as a practice note Solicitors have a duty of care It is important that the testator Where an elderly client is DRAFTING WILLS FOR THE ELDERLY CLIENT – GUIDELINES FOR SOLICITORS CLIENT – GUIDELINES FOR THE ELDERLY DRAFTING WILLS T towards and this their clients, duty is heightened when acting for a vulnerable and elderly client who may find him/herself in circumstances of undue influence, or abuse. In addition, a solicitor must often assist the elderly client to understand the many issues involved, to communicate his/her wishes, and to give full and competent instructions. POINTS FOR CONSIDERATION 1. The client. to ensure that instructions are taken from the intending testator, as it is the testator and only the testator who is the client. Interested family members may be keen to inform or interpret the wishes of elderly relatives for the solicitor preparing the will. Family or friends may feel they ‘know what’s best’. While the wishes of the testator will often coincide with the wishes of those who wish to assist in the preparation of a will, in many circumstances this will not be the case. is seen alone, without the benefit of third-party assistance, in either communicating or formulating his wishes. introduced to a solicitor by a third party making for the purpose of a will, best practice requires the preparation execution of and wills in general, but are intended acting forto assist solicitors when the elderly and often vulnerable client. Moredetailed and general guidelines regarding the preparation of wills can be found in the Law Society publication Wills, Probate and Estates www.lawsocietygazette.ie practice LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 48 BRIEFING 49
12 JAN/FEB 2009 JAN/FEB 11 www.lawsocietygazette.ie appointment of the testator’s spouse (if any) as sole unless or co-executor, circumstances indicate good reason to do otherwise. This will avoid the possibility of the surviving spouse’s wishes or interests being overridden or manipulated by others. Further, where the surviving he spouse is an executor, or she will be best placed to exercise his or her right to the legal right share. The Probate Office may It may be prudent for a It may also be prudent to have The advantages in the present (if any) and examinations execution and findings as to the of the will and the testator’s capacity. • require an affidavit of mental capacity where dies a testator in a nursing home or institution, date of notwithstanding the execution of the will. solicitor to arrange to obtain a medical report as to the ability testator’s cognitive The from his/her doctor. reporting doctor should see the of the patient within 30 days execution of the will, though ideally certification should be contemporaneous. The doctor should be advised that the solicitor is endeavouring to assess whether the testator has testamentary It should capacity. be emphasised to the doctor that a general assessment of the client’s mental condition is not what is required. As stated above, medical evidence may be of assistance, but it is not a substitute for a legal determination of capacity. one of the attesting witnesses swear an affidavit of attesting witness. 8. Appointment of executors. Solicitors should ensure that the elderly client gives due consideration to the appointment of executors and, as dictated by circumstances, any advice given should include:
8 Just as LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 10 The import- Following the Practitioners should also evidence of the instructions given drafting that gave rise to the of the will and in establishing was that the will of the testator of undue made in the absence also influence. A solicitor should record in the attendance the assessment of the testator’s mental state, particularly so where there may be a doubt about capacity to make the will. The attendance should record details of examinations and findings, 9 The be aware of their duty of care to putative beneficiaries. when obtaining instructions, it is important that the testator is seen and interviewed alone by a solicitor immediately before the execution of the will to avoid the possibility of undue influence. If this is not possible, due to exceptional circumstances, such as the testator’s poor health or otherwise, the client should be seen in the absence of any interested parties. 7. Post-execution. ance of the attendance notes at the time of the execution of the will should not be overlooked and should be prepared with due care, particularly if there is a doubt about capacity, concerns of undue influence or other circumstances. Capacity to make a will is a requirement when instructions are given and again when the will is executed. A solicitor should, at the time of execution, record and preserve details of his/her attendance including those on the testator, 6 with clear and comprehensive werenotes of what steps capacity, taken to establish and, where relevant, to explore any changes or alterations from earlier wills. 6. Execution. taking of instructions and the preparation of the attendance, solicitors should ensure that wills are drafted and executed promptly – particularly when clients are elderly or are known to be ill. Following the are what the client 5 7 The provisions of all Their nature and extent, Are vulnerable or needy relevant legislation, Any tax implications of the testator’s wishes for his will. family members particularly dependent on the testator and for whom the testator may have an obligation to provide, Have received sufficient benefit from the testator, Are financially better off than others, Are more caring of/enjoy a closer relationship to the testator. Their value, Those held in joint names, and All/any benefits payable on death. 4. Taking instructions. 4. Taking taking of instructions and the aredrafting of the attendance two processseparate stages in the client. of making a will for any Instructions comprehensively on • • • • • testator have been obtained, including • • • • testator’s family is available, including those who • The testator has been advised All information concerning the The will, when drafted, must The will, when drafted, Details of the assets of the 5. Attendance. taking of instructions and on the completion of the consultation with the elderly client, a solicitor should immediately draft the attendance. This document may be invaluable at a later stage as c) a) b) directs and instructs a solicitor to do in relation his estate to interviewin the course of the for preparation will. The of the attendance is the record of what course of was actually said in the the consultation. reflectinstructions. the testator’s must For this purpose, a solicitor ensure care and take extra in interviewing the elderly client that: comprehensive notes are made of any assessment of a client’s capacity. as lacking capacity because of an apparently imprudent decision, and Ensure that immediate and whether it is necessary to review of the assessment capacity at an additional meeting in the near future, Do not regard an individual preserved social skills into they have thebelieving that necessary to make a capacity particular decision or complete a particular transaction, toGive consideration as to the answer ‘yes’ or ‘no’, to the answer being misled by a client’s Avoid • • • • It is important to note that mental illness does not preclude testamentary Where a capacity. client with a known mental illness presents himself/herself and indicates a wish to make a will, a solicitor must clearly establish the presence or absence of testamentary If in capacity. doubt, a medical opinion should be sought before proceeding. If the client is under the care of a consultant, his/her opinion may be the more relevant one, rather than the testator’s general it is the However, practitioner. solicitor’s obligation to determine whether or not the client has testamentary Medical capacity. evidence may be of assistance, but is not a substitute for a legal Careful determination of capacity. notes should be made and recorded where the client lacks sufficient capacity and a solicitor concludes that it is not possible to obtain instructions. Similarly, where there is a doubt as to capacity but a solicitor proceeds to draft a will on the basis that verythere is capacity, careful and detailed notes setting out the full circumstances should be made, with a contemporaneous attendance of the circumstances surrounding the taking of instructions and the preparation and execution of the will.
, s116. Hooper v (2002) Lloyds Ref Aspects of Elder Abuse, X v Woolcombe-Yonge Subcommittee on Financial finalising the document.finalising the medical reportsCopies of any be retainedobtained should with the attendance. In ([2001] WTLR), the court held be athat seven days would sufficient short period “in most cases” where the client die”,was “elderly or likely to but “where there is a plain and substantial risk of the client’s imminent death, anything roughother than a handwritten codicil prepared on the spot for signaturenegligent. It may be is a question of the solicitor’s judgement based on his assessment of the client’s age and health.” See the case of Fynmores PN18, where the court held that the delay caused by the solicitor in failing to ensure the expeditious execution of a will generated a liability to a disappointed beneficiary. Including medical reports if obtained at this stage. Succession Act 1965
Guidance and Ethics Committee 8 9 10 11 12 It is recommended that Business Law Committee G that their members would highlight the indemnity provisions where possible. practitioners review the terms and conditions of their practice bank, and in particular the indemnities incorporated therein. Practitioners are urged exercise to caution in agreeing to engage with their bank on the basis of standard terms and conditions and should, in particular, review the indemnities included in those terms and conditions. Where the indemnities are unreason- able, practitioners should raise their concerns directly with their bank.
, p63. Gazette he must then give advice as tohe must then what is requiredwhether or not of him is appropriate.” Establish, where real property whether it is held is held jointly, as aas a tenant-in-common or regardjoint tenant. Also, have peopleto the fact that elderly often open or convert bank or willaccounts to a joint basis easehave dual mandates for of lodgement or withdrawal frailty due to lack of mobility, or other reasons. A joint notaccount or mandate will necessarily resultin the asset passing by survivorship. The testator’s intentions with regard to monies in such an account should be recorded in the attendance and, where it is clear that a resulting trust arises, this asset should be included in the Will. See also the practice note, “Joint bank accounts – guidelines for solicitors”, in the December 2008 Where a solicitor does not have the expertise to advise the client on taxation matters, the client should be advised to seek professional advice on the taxation implications of any proposed will before
6 7 sought, The failure by the banks in some instances to highlight the indemnity provisions, and The provision in certain of the banks’ terms and conditions whereby the bank may automatically debit the customer’s account in the amount of any claim covered by the indemnity. (IR • • at D1. (1870) The Business Law Committee conveyed its views to the Irish Banking Federation; however, the Irish Banking Federation felt it would not be appropriate for it to recommend a standardised approach to its members. They agree to request did, however, Richards v Finance and Carroll v Carroll at D1: Legal Capacity. (2001) WLTR at 1031. (2001) WLTR Banks v Goodfellow As drafted, some of the Practitioners may consider the In particular, the Business The extent of the indemnities See also comments of Barron J in 1999): “a solicitor or other professional person does not fulfil his obligation to his client … by simply doing what he is instructed to do. He owes such person a duty to exercise his professional skill and judgement and he does not fulfil that duty blithely following instructions without stopping to consider whether to do so is appropriate. Having done so, Law for the Older Client “‘Capacity’ means someone’s“‘Capacity’ means something. Inability to do it refersa legal context, to a intoperson’s ability to enter a transaction or exercise legalrights which may have consequences for other people, gift, asuch as making a will, a powercontract or an enduring being or generally of attorney, able to manage one’s property and affairs” – Tolley’s/STEP, OlderFinance and Law for the Client See LR 5 QB at 549 and Allen Tolley’s/STEP,
be given by the practitioner in favour of the bank. indemnities could cover a situation where the bank, acting on instructions from suffersthe practitioner, a loss through no fault whatsoever of indeed, in the practitioner or, some cases through a fault of the bank solely. indemnities contained in many of the said terms and conditions unreasonable, as going beyond what a bank could reasonably require of them. Law Committee is concerned at: 5 Footnotes 1 2 (1870) LR 5 QB 549. 3 4 • While JAN/FEB 2009 JAN/FEB A will is a he Business Law Committee has recently undertaken a the choice of executor wherethe choice of executor make the testator wishes to special provision for needy childrenfamily or other elderly members (such as siblings). The potential for conflict of The potential interestin the appointment of certain such executors, as the step-parent of the testator’s children, and the effect may have on the this administration of the estate. The need for extra care in T BUSINESS BANKS’ TERMS AND CONDITIONS INCORPORATING INDEMNITIES BUSINESS BANKS’ TERMS AND CONDITIONS INCORPORATING • • review of the standard terms and conditions of several of the commercial banks with whom practitioners may hold client and office accounts. These terms and conditions govern, among other things, the relationship between the bank where the and the practitioner, practitioner requests the bank to act on instructions sent by fax or The Business Law electronically. Committee would like to draw the attention of practitioners to the fact that certain terms of these and conditions incorporate what the committee considers to be onerous indemnities deemed to 9. Confidentiality. confidential document. Neither the contents, nor the fact of its execution, should be disclosed to any third party. This is of particular relevance where there is any possibility or question of abuse, financial or otherwise. Further, it may not always be wise or prudent to post a draft will for review to a testator. 10. Powers of attorney. taking instructions for an elderly client concerning the completion of a will, a solicitor should take the opportunity to explain the concept of, and the advantages and risks involved in, completing an enduring power of attorney. www.lawsocietygazette.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 50 BRIEFING 51 , the 1/1/ Com- and the 31/12/ . Revoke the (SI 240/2007). Establish a Provides for Prescribe fees 17/12/2008 JAN/FEB 2009 JAN/FEB SI 561/2008 22/2008 SI 597/2008 . Pensions Acts 1990 – 2007 Coroners Act 1962 www.lawsocietygazette.ie ) of 2008 Coroners Act 1962 (Fees and Expenses) Regulations 2008 Number: Contents note: and expenses for the purposes of the Coroners Act 1962 (Fees and Expens- es) Regulations 2007 Social Welfare (Miscellaneous Social Welfare Provisions) Act 2008 Number: Contents note: welfareamendments to the social code, as announced in the budget statement 2009, and includes amendments to PRSI. Amends a number of other acts, including the Civil Registration Act 2004 Citizens Information Acts 2000 and 2007 Date enacted: Commencement date: mencement order(s) to be made for ss8, 22, 24, 26-29 and for part 5 (ss30-38, dissolution of Combat Poverty Agency). Various commencement dates for other sections – see act for details SELECTED STATUTORY INSTRUMENTS Copyright and Related Rights (Public Lending Remuneration Scheme) Regulations 2008 Number: Contents note: public lending remuneration scheme whereby authors will be remunerated, out of moneys voted by the Oireachtas, according to the number of loans of their books by the public library service. Commencement date: Commencement date: 2008 and 1/9/2008 for various fees and expenses. Credit Institutions (Financial Support) of (Specification Institutions) Order 2008 , which 1/1/2009 to provide Health (Misc- Provides for Finance Gives effect to 22/12/ 12/12/2008 LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 21/2008 24/2008 emissions’ to 2 22/12/2008 Health Act 1970 Health Act 1970 and capital gains tax), except whereand capital gains tax), except inotherwise expressly provided act). Seepart 1 (per s102(8) of the act for details Health Act 2008 Number: Contents note: (in- the replacement of s45(5A) serted by s1 of the ellaneous Provisions) Act 2001 the provided for automatic entitle- ment to a medical card for all persons aged 70 years and over who are ordinarily resident in the state, irrespective of their means. Substitutes a new section 45(5A) and inserts an additional s45A in the that those people who are aged 70 or over on 31/12/2008, whose gross income does not exceed specified limits, will be entitled to a medical card. Those whose income is above the specified limits must advise the Health Service Executive by 2/3/2009 that they no longer qualify for a medical card after that date. Provides for related matters. Date enacted: Commencement date: (per s1(2) of the act) (Duties and Motor Vehicle Licences) (No 2) Act 2008 Number: Contents note: increases in motor taxation and trade plate licences announced in the budget statement 2009 on 14/10/2008. Also contains a minor technical amendment to the definition of ‘CO , which has parallel provisions in ensure consistency with the Act relation to the vehicle registration tax system. The increases are effective from 1/1/2009. Date enacted: Commencement date: 2008 Com- 24/12/ done at Provides for the parking facilities 2/12/2008 24/12/2008 25/2008 legislation update legislation and on their Destruction providesOslo, 18/9/1997, and imposedfor penalties that may be upon conviction. Date enacted: Commencement date: be mademencement order(s) to (per s1(2) of the act) Finance (No 2) Act 2008 Number: Contents note: imposition, repeal, remission, alteration and regulation of taxation, of stamp duties and of duties relating to excise, and otherwise makes further provision in connection with finance, including the regulation of customs. Implements many of the measures announced in the budget statement 2009 and financial resolutions passed by Dáil Éireann on 14/10/2008, including the introduction of levies on income and on employee parking where an employer provides car- for employees. Section 81 of the act provides for an exemption from penalties in respect of any instrument first executed before the passing the act on which stamp duty chargeable has not been paid, provided that the instrument is delivered to the Revenue Commissioners for stamping before the expiration date, which is the expiration of the period of 56 days commenc- ing on 24/12/2008, the date of passing of the act, and that the stamp duty chargeable, together with interest relating to such is paid on or before the duty, expiration date. Date enacted: Commencement date: 2008, except where otherwise expressly provided or where commencement order(s) are to be made; 1/1/2009 for part 1 (ss1-45 levies, income tax, corporation tax
Finance 18/12/
Creates Appropriates to
18/12/2008 23/2008 ; makes provision in 20/2008 ; and makes provision in 18 November ’08 – 19 January ’08 – 19 18 November ’09 Convention on the Prohibition of Convention on Cluster Munitions Contents note: offences in relation to the use, development, production, acq- uisition, stockpiling, retention or transfer of cluster munitions, explosive bomblets and anti- personnel mines, as required under the Cluster Munitions and Anti- Personnel Mines Act 2008 Number: Commencement date: 2008 done at Dublin, 30/5/2008, and the the Use, Stockpiling, Production and of Anti-Personnel Mines Transfer relation to financial resolutions passed by Dáil Éireann on 14/10/2008. Date enacted: ACTS PASSED Appropriation Act 2008 Number: Act 2004 Details of all bills, acts andDetails of all bills, sincestatutory instruments library1997 are on the catalogue – www.lawsociety.ie areas)(members’ and students’ – with updated information stage aon the current and thebill has reached of eachcommencement date(s) and actsact. All recent bills and are on www.oireachtas.ie recent statutory instruments are on a link to electronic statutory instruments from www.irishstatutebook.ie. Contents note: the proper supply services and purposes sums granted by the Central Fund (Permanent Provisions) Act 1965 relation to deferred surrender to the Central Fund of certain undischarged appropriations by reference to the capital supply services and purposes, as provided for by section 91 of the 31/12/ 1/1/ 1/12/ Amend the Give effect to (SI 137/1987 to SI 572/2008 SI 480/2008 European Communities (MergersEuropean Communities Regu- and Divisions of Companies) lations 1987 directive 2007/74/EC, which allows for the exemption from excise duty and value added tax of certain goods, subject to monetary thresholds or quantitative limits, imported in the personal luggage of persons travelling from non- EU member states. Commencement date: the District Court and may bethe District proceedings takenenforced, and were a judgment oron it, as if it court.decree of that date: Commencement 2009 European Communities (Mergers and Divisions of Companies) (Amendment) Regulations 2008 Number: Contents note: 2007/63/ give effect to directive 78/EC amending directives 855/EEC and 82/891/EEC concerning the requirement of report on an independent expert’s the occasion of merger or division of public liability companies. The effect of the amendment made by these regulations is to give holders of shares and other securities with voting rights at general meetings of each of the merging companies (in the case of a merger) and each of the companies involved in a division (in the case of a division) the option, if they all so agree, to dispense with the requirement to have an examination of, and a report on, the draft written expert’s terms of a merger or division. Commencement date: 2008 European Communities Exemption for Certain Non- (Tax Commercial Goods Imported in the Personal Luggage of from ThirdTravellers Countries) Regulations 2008 Number: Contents note: 2008 Finance Act 2007 (Commencement of Section (SI (SI Child Consumer (SI 15/1996) (inserted by section (SI 93/1997), providing ). Amend orderof the 84 Consumer Protection Act District Court Rules 1997 District Court Rules 1997 claims procedure. Provide that the District Court shall have jurisdiction for the purposes of the regulation and that such jurisdiction shall be exercised in accordance with the rules of regulation (EC) no 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Provide that a judgment given in another member state in the European small claims procedure shall be of the same force and effect as a judgment or decree of (inserted by section 4 of the ). Child Care Act 1991 12/12/ by the insertion of a new rule 27A to deal 19/1/2009 1/1/2009 16/12/2008 29/12/2008 . District Court Rules 1997 Make provision Insert a new order 53C, ‘European small claims Insert order a new 72B, ‘ Rules of the Superior CourtsRules of the 1986 Amend order 22 of the Amend order the 61A of Child Care Act 1991 SI 533/2008 Child Care (Amendment) Act 2007 SI 585/2008 SI 498/2008 SI 583/2008 SI 469/2008 ’, in the for the administration in Irish law of regulation (EC) no 1896/2006 creating a European order for payment procedure. Commencement date: 2008 European Communities (European Small Claims Procedures) Regulations 2008 Number: Contents note: for the administration in Irish law of regulation (EC) no 861/2007 establishing a European small to provideof sections 71 (civil relief for the operation by way of prohibition orders), 72 (prohibition order code owners), against damages in respect74 (right of action for of a prohibited act or orders)practice), 81 (compensation 6 of the and schedule Protection Act 2007 Contents note: 2007 Commencement date: Circuit Court Protection Rules (Consumer Act 2007) 2008 Number: Contents note: District Court Rules 2008 (Bench Warrants) Number: procedure’,in the the District Court procedure operation of regulation for the (EC) no 861/2007 establishing a European small claims procedure. Commencement date: Contents note: Commencement date: District Court (European Small Claims) Rules 2008 Number: Contents note: Care (Amendment) Act 2007 93/2007) to allow the particulars of all offences and/or complaints, together with particulars of recognisances that have been breached, to be contained in a bench warrant, either in the body thereof or attached thereto. Commencement date: District Court (Child Care) Rules 2008 Number: 93/1997) by the insertion of a new rule 2 to provide for applications to the court by persons seeking to report proceedings in accordance with section 29(5) of the 3 of the District Court Rules 1997 with an application for an order by a foster parent or relative with morewhom a child has been placed for five years or under section 43A of the
, per 1/4/ JAN/FEB 2009 JAN/FEB 13/12/ (SI 535/ Give effect Amend the Section 6(1) Section Iris Oifigiúil Make provision Credit Institutions Credit SI 515/2008 SI 526/2008 SI 547/2008 SI 525/2008 www.lawsocietygazette.ie Number: note: Contents of the (Financial Support) Act 2008 (Financial the Minister forprovides that provide financialFinance may coveredsupport in respect of insti- liabilities of any credit that thetution or subsidiary by order. minister may specify is specifiedEBS Mortgage Finance ofby this order for the purposes section 6(1) of the act. European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) (Amendment) Regulations 2008 Number: Contents note: European Communities (Electronic Communications Networks and Serv- ices) (Data Protection and Priv- acy) Regulations 2003 2003) by increasing the pen- alty for a summary offence; creating an indictable offence for a contravention of regulation 13, relating to unsolicited communications, and providing for the penalties that may be imposed on conviction of this offence; and by the amendment of regulations relating to confidentiality of communications, unsolicited com- munications and enforcement. Commencement date: 2008 (day after date of pub-lication of notice of SI in regulation 1(2) of the SI) European Communities (Environmental Liability) Regulations 2008 Number: Contents note: to directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. Commencement date: 2009 European Communities (European Order for Payment) Regulations 2008 Number: Contents note: LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 52 land. BRIEFING 53 29/11/2008 for 29/11/2008, except 29/11/2008 29/11/2008 29/11/2008 29/11/2008 JAN/FEB 2009 JAN/FEB www.lawsocietygazette.ie SI 494/2008 SI 495/2008 SI 488/2008 SI 493/2008 SI 496/2008
for paragraph 29 (in-service practical training programme come into fee) of the schedule that will force on 1/6/2009 Pharmaceutical of Ireland Society (Registration) Rules 2008 Number: Commencement date: Pharmaceutical Society of Ireland (Retail Pharmacy Business) (Registration) Rules 2008 Number: Commencement date: Regulation of Retail Pharmacy Businesses Regulations 2008 Number: Commencement date: all regulations, except regulation 4(3), which will come into force on 1/11/2010. Regulation 4(3) relates to the provision of a separate and designated area within the pharmacy where a pharmacist can have a private discussion with the person for whom a prescription has been issued or with the carer of such a person Commencement date: Commencement Pharmaceutical Society of Ireland (Education and Rules 2008 Training) Number: Commencement date: Pharmaceutical of Ireland Society (Fees) Rules 2008 Number: Commencement date: LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW (SI 167/2008). 29/11/2008 directive 2005/36/EC as European Communities (Recognition of
SI 487/2008 SI 489/2008 SI 492/2008 Regulated by the Solicitors Regulation Authority of England and Wales amended by directive 2006/100/EC, insofar as these directives concern the profession of pharmacist. Revokes: Professional Qualifications relating to the Profession of Pharmacist) Regulations 2008 Pharmaceutical Society of Ireland (Council) (Rules) 2008 Leg-implemented: Commencement date: Contents note: Appoints 29/11/ 2008 as the Appoints 29/11/ Contents note: provisions date for the following commencement than subsections (1)(a) of the act: ss4, 13 (other 19, 21 to 24 and 59 to(iv) and (1)(c), 14 to 17, 62; part and 5 (ss25-32) (other than ss27(e), 28(d) 29(e); part 7 (ss66-72); part 8 (ss73-76) (except insofar as it is already in operation); schedules 2, 3 as the commencementand 4. Appoints 1/1/2009 13(1)(c) and 20 of the act,date for ss13(1)(a)(iv), commencement date forand 1/4/2009 as the of the act. The abovess27(e), 28(d) and 29(e) provisions deal with the pharmaceutical registration system, offences, powers of investigation and related schedules to the act, including issues in the the repealpharmacy of the related as enactments specified in schedule 4. European Communities (Recognition of Professional Qualifications Relating to the Profession of Pharmacist) (No 2) Regulations 2008 Number: Number: Pharmacy 2007 (Commencement) Act Order 2008 Number: from Finance Finance Act Appoints Require land- Appoints 12/11/ SI 534/2008 SI 472/2008 SI 560/2008 . These provisions extend . Section 24 provides for. Section Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ire Publication of advertisements in this section is on a fee basis and does not represent Contents note: lords of rented houses (in- cluding flats and maison- ettes), with some exceptions, to ensure that such houses meet certain minimum stand- ards relating to structural cond- ition, provision of sanitary facilities, food preparation, availability storage and laundry, Housing (Standards for Rented Houses) Regulations 2008 Number: 31/12/2008 to 31/12/2012. Finance Act 2008 (Section 32)Finance Act 2008 (Section (Commencement of Certain Provisions) Order 2008 Number: Contents note: commencement date2008 as the 24 of the for section 2007 toan extension from 1/1/2007 25%31/12/2008 of the general and thestock relief for farmers relief for100% scheme of stock certain young trained farmers. Contents note: 17/12/2008 as the commence- ment date of section 32 (other than subsection (1)(b)) of the Act 2008 the scheme of film relief provided for under section 481 of the Consolidation Act 1997 Taxes 24(1)) Order 2008 Number:
. (SI Appoints Appoints 1/12/ Medical Practitioners Act G SI 528/2008 SI 497/2008 Water Services Act 2007 Water Prepared by the Prepared Waterworks Clauses Act 1863 Waterworks Law Society Library (d) of subsection 3; s88(9); part(d) of subsection The provisions12 (ss96-103). allow for thecommenced of the Postgraduatedissolution Dental Board, theMedical and its staff, property andtransfer of Serviceliabilities to the Health matters;Executive, and related transfer1/1/2009 appointed as the day by the 555/2008). Services Act 2007Water (Commencement) Order 2008 Number: Contents note: 15/12/2008 as the commencement date for section 56 (conservation of water) of the act and for the repeal of the 2007 (Transfer Day) Order 2008 Day) Order 2007 (Transfer under section 4(1) of, and schedule 1 to, the Contents note: 2008 as the commencement date for section 37 of the act, insofar as it refers to a provider of protected forms of transport referred to in paragraph (f) of the definition of ‘security service’ in section 2(1) of the act. Private Security Services Act 2004 (Commencement) Order 2008 Number: ; ), (SI Rules of the (as amended by the ): s3(1) and part 1 of Residential Institutions Medical Practitioners Act 1978 (SI 15/1986) to facilitate the (SI 15/1986) to facilitate Act 2007 Health (Miscellaneous Provisions) Act 2007 schedule 1, insofar as they relate to the repeal of chapter 2 of part IV of, and the third schedule to, the s86, other than paragraphs (c) and Residential Institutions Redress Act Rules of the Superior Courts 1986 16/12/2008 29/12/2008 16/12/2008 (SI 15/1986) to provide (SI 15/1986) the opening hours that ’, in the Appoints 31/12/ Amend order 118, rule 4(2), of the Insert a new order 134A, ‘ Medical Practitioners Insert a new order 42C, ‘European orders for payment’, SI 554/2008 SI 562/2008 SI 551/2008 SI 529/2008 Rules of the Superior Courts 1986 (added to section 13 (award of the board) by section 34(e)(iv) of Commission to Inquire into Child Abuse (Amendment) Act 2005 Medical Practitioners Act 2007 (Commencement) (No 3) Order 2008 Number: Contents note: 2008 as the commencement date for the following provi- sions of the Superior Courts 1986 in the Rules of the Superior CourtsRules of the (Amendment to Order 118) 2008 Number: Contents note: officesof the public of the High and Supreme Courts 10.30am shall be Eve, when the opening hours shall beto 4.30pm, save for Christmas 10.30am to 1.00pm. Commencement date: Rules of the Superior Courts (European Orders for Payment) 2008 Number: Contents note: 15/1986) to prescribe procedures subsections for applications under 14 and 15 of section 13 of the 2002 the and to provide for related matters. Commencement date: operation of regulation (EC) no 1896/2006 creating a European order for payment procedure. Commencement date: Redress Act 2002 Rules of the Superior Courts Institutions Redress (Residential Act 2002) 2008 Number: Contents note: . JAN/FEB 2009 JAN/FEB 1/12/ Appoints 9/12/ Appoints 5/12/ Insurance Act 1989 SI 520/2008 SI 530/1998 www.calcuttarun.com Tel: 01 672 4846 Tel: www.calcuttarun.com Central Bank and Financial ) of the www.lawsocietygazette.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 2008 as the commencement date for section 50 of the act. Section 50 provides for the transfer of staff from Forfás to the National Standards Authority of Ireland. Insurance Act 1989 (Regula- tion of Reinsurance) (Com- mencement) Order 2008 Number: Contents note: 2008 as the commencement date for section 22A (persons not to carry on certain reinsurance business without authorisation) (substituted by section 35 of, and item 20 of part 8 of schedule 1 to, the Services Act Authority of Ireland 2003 of adequate heating, lighting andof adequate safety of electricityventilation, fire safetyand gas installations, and refuse facilities. date: Commencement exception of articles2009, with the heating, food 6 to 8 (sanitary, laundrypreparation, storage and existingfacilities) in respect of come intotenancies, which will operation on 1/12/2013 Industrial Development (Enterprise Ireland) Act 1998 (Section 50) Commencement Order 2008 Number: Contents note:
BRIEFING 54 BRIEFING 55 , Solicitors of the ) JAN/FEB 2009 JAN/FEB , dated 26 September , dated 26 September www.lawsocietygazette.ie pursuant to section 10 of the pursuant to section 10 Act Solicitors (Amendment) 1994 2004, give Failed to subsequently Failed to respond to the letters from the Society, Failed to comply with a direction of the committee of 1 February 2006 that she transfer the file to another solicitor to be nominated by the complainant, pursuant to section 8(1)(d) of the (Amendment) Act 1994 Notwithstanding that the foregoing direction had become absolutely binding retained the file upon her, concerned and continued to deal with it, Failed to comply with the further direction of the committee on 1 February 2006 that she submit a full and satisfactory response to the complaint of the complainant, and notwithstanding that this direction had become absolutely binding upon her, priority to the file as directed priority to the file as directed and by the Complaints Client Relations Committee on 9 February 2005, Failed to furnish two monthly reports as directed by the committee on 9 February 2005, Failed to reply to subsequent correspondence from the complainant, Caused the complainant considerable distress, as evidenced by the letter to the complainant’s Society dated 9 May 2005, Failed to reply to numerous letter from the complainant dated 16 May 2006, to her, in relation to what the complainant believed was the payment of an incorrect
i) j) k) l) e) f) g) h) m)
LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 10,000 to € Solicitors (Amendment) Act 2002 (Amendment) Act Solicitors Through her conduct, Through her conduct, time specified with a notice completing the distribution of moneys in an estate between 2001 and 2006, Retained moneys due to the beneficiaries from 2001 to 2006, Despite numerous attempts by the person acting on behalf of the beneficiaries to find out what was happening in relation to the estate between June 2003 and June 2004, did not respond to these enquiries, Failed to comply within the showed a complete lack of showed a complete former concern towards her client and, in particular, of given the circumstances her former client. Do stand censured, Pay the sum of the Law Society of Ireland, as taxed by a taxing master of the High Court, in default of agreement. in serious delay in Was the compensation fund, Pay the whole of the costs of d) a) b) c) g) a) b) c) The tribunal ordered that the The tribunal ordered respondent solicitor: In the matter of Helen Lucey, a solicitor practising under the style and title of Marshall & Macauley Solicitors, The Square, Listowel, Co Kerry, and in the matter of the Solicitors Acts 1954-2002 [3012/DT14/07] Law Society of Ireland (applicant) Helen Lucey solicitor) (respondent On 30 July 2008, the Solicitors found Disciplinary Tribunal the respondent solicitor guilty of misconduct in her practice as a solicitor in that she:
compensation fund, of Pay the whole of the costs correspondence from the Society, Failed to comply with a direction of the Complaints and Client Relations Committee on 1 February 2006, Through her conduct, demonstrated a cavalier attitude towards the statutory obligation Society’s to investigate and deal with complaints, handing over the file of her client to his new solicitors, Failed to respond to multiple correspondence from her new solicitors about client’s taking up her former client’s file, Effectively prevented her case being former client’s progressed by retaining her file from former client’s August 2005 to 28 April 2006, Failed to reply to multiple the Law Society of Ireland, the Law Society of Ireland, of as taxed by a taxing master of the High Court, in default agreement. in serious delay in Was d) e) f) b) c) a) c) In the matter of Helen Lucey, Lucey, In the matter of Helen under a solicitor practising Marshall the style and title of & Macauley Solicitors, The Square, Listowel, Co Kerry, and in the matter of the Solicitors Acts 1954-2002 [3012/DT101/06] Law Society of Ireland (applicant) Helen Lucey solicitor) (respondent On 30 July 2008, the Solicitors found Disciplinary Tribunal the respondent solicitor guilty of misconduct in her practice as a solicitor in that she: Solicitors 10,000 to the €
Failed to provide adequate Pay a sum of Do stand censured, respond to the Society’s respond to the Society’s correspondence and, in 4 letters dated particular, January 2007, 22 January 2007, 1 February 2007, 26 March 2007, 4 April 2007, 23 April 2007, 23 May 2007 and 29 May 2007 respectively. to letters from named solicitors dated 25 April 2006, 15 May 2006, 13 July 2006, 11 August 2006 and 7 September 2006 respectively, Failed to adequately in relation to property at another named location to the complainant and his named solicitor, Failed to respond adequately
legal services to the comp- lainant in relation to the stamping and registration of a conveyance made between the complainant and other named persons, made on 30 December 1997 and in relation to property at a named location, Failed to clarify queries Solicitors DisciplinarySolicitors Tribunal Solicitors (Amendment) Act 1994 Solicitors (Amendment) Reports Disciplinary of Solicitors of the outcomes inquiries are of Ireland by the Law Society published Tribunal as provided 17 of the amended by section in section 23 (as for a) b) d) c) b) a) In the matter of Matthew In the matter of Breslin, a solicitor practising & as Donal J O’Neill 3 Denny Solicitors, Company, and Co Kerry, Street, Tralee, in the matter of the On 24 July 2008, the Solicitors the found Disciplinary Tribunal respondent solicitor guilty of misconduct in his practice as a solicitor in that he: Acts 1954-2002 Law Society of Ireland (applicant) Matthew Breslin solicitor) (respondent The tribunal ordered that the respondent solicitor:
3,800 Solicitors € . ) of the Solicitors (Amendment) Retained at least complainant’s property in complainant’s the Land Registry in a timely manner or at all, Failed to reply to all the issues raised in a letter from the named complainant dated 7 September 2007. correspondence and, in correspondence and, the Society’s particular, letters of 17 August 2007, 30 August 2007, 7 September 2007, 24 September 2007, 10 October 2007, 19 October 2007, 5 November 2007, Failed to comply with the direction of the Complaints and Client Relations Committee, made at its meeting on 28 November 2007, to respond to the letter of 24 Society’s September 2007 within one month, Failed to register the named The tribunal ordered that 20,000), the tribunal is of the On 23 October 2008 and 13 On 23 October 2008, the Solicitors November found Tribunal Disciplinary solicitor guilty the respondent as of misconduct in his practice a solicitor in that he: in respect of stamp duty in respect of stamp named on behalf of a to complainant, but failed furnish same to the Revenue to the or to return same client in a timely manner, Failed to reply to the Society’s d) e) a) b) c) And by reason of the submissions made and the fact that the respondent solicitor has voluntarily agreed to pay the stamp duty (which in the normal course of events would be the responsibility of the client) in addition to the penalty imposed by the Revenue (upwards of € opinion that it is appropriate to make an order pursuant to subsection 9 of section 7 (as substituted by section 17 of the Solicitors (Amendment) Act 1994 (Amendment) Act 1960 and amended by section 9(d) of the Act 2002 the respondent solicitor:
7,500 € 7,500 to the
€ Misrepresented to the Misrepresented to Solicitors Acts 1954-2002 Pay a sum of of the Law Society of Ireland, including witnesses’ expenses, as taxed by a taxing master of the High Court, in default of agreement. complainant that he had complainant that he “offer received a further of settlement” of to accept this “offer of settlement” and ostensibly to compromise his claim in the action referred complainant’s to above, Mislaid and lost the com- file and papers plainant’s relating to the complainant’s action referred to above and misrepresented to the complainant that he was progressing the complainant’s action and awaiting a court date, when in fact he had lost file and the complainant’s had not progressed the com- action other than to plainant’s issue and serve a civil bill. Do stand censured, plus costs from Ulster Bank plus costs from Ulster Limited in the complainant’s Ulster named action against in Bank (Ireland) Limited Court the Dublin Circuit record and bearing a stated when in fact he had number, from received no such offer Ulster Bank Limited, Advised the complainant compensation fund, Pay the whole of the costs On 16 October 2008, theOn 16 October Tribunal Solicitors Disciplinary respondent solicitorfound the misconduct in hisguilty of that he:practice as a solicitor in n the matter of W Joseph a) b) c) 1) 2) 3) I a solicitor of Ballygar Fahey, Co Road, Mountbellew, and in the matter of Galway, the The tribunal ordered that the respondent solicitor: [6687/DT37/08] Law Society of Ireland (applicant) W Joseph Fahey solicitor) (respondent
Solicitors ) Solicitors 3,000 to the € , SI no 421 of Solicitors’ Accounts Breached regulation 21(1) Pay the sum of the Law Society of Ireland, as taxed by a taxing master of the High Court, in default of agreement. showed a disregard for his own statutory obligations statutory and the Society’s obligations to monitor compliance with the Solicitors’ Accounts Regulations of the Regulations 2001, in failing to ensure that there was furnished to the Society an accountant’s report covering his financial year ended 31 March 2007 within six months thereafter, that is, by 30 September 2007, Through his conduct, for the protection of clients, the solicitors’ profession and the public. Do stand censured, compensation fund, Pay the whole of the costs of of Ireland to the Solicitors of Ireland and in Tribunal Disciplinary of the the matter Acts 1954-2002 Law Society of Ireland (applicant) Michael Hinkson solicitor (respondent theOn 30 September 2008, Tribunal Solicitors Disciplinary solicitorfound the respondent in hisguilty of misconduct that he:practice as a solicitor in a) b) c) b) a) In the matter of Michael O’Loughlin, a solicitor practising in the firm of MD O’Loughlin & Company, Solicitors, Suite 11, Parklands Park, Southern Cross Office and Co Wicklow, Road, Bray, in the matter of the Acts 1954-2002 Law Society of Ireland (applicant) Michael O’Loughlin solicitor) (respondent The tribunal ordered that the respondent solicitor: JAN/FEB 2009 JAN/FEB 11,000 to the compensation Disciplinary Tribunal made Disciplinary Tribunal on 5 July 2004. made on 16 January 1989, Order of the Solicitors made Disciplinary Tribunal on 21 June 2001, Order of the Solicitors made Disciplinary Tribunal on 21 June 2001, Order of the Solicitors made on 22 February 1986, Order of the High Court solicitor to pay the whole of the costs of the Law Society of Ireland, as taxed by a taxing master of the High Court, in default of agreement. Order of the High Court solicitor, solicitor, Ordering the respondent solicitor to pay the sum of € fund, Ordering the respondent amount to her as her share amount to and estate of her mother’s of the payment the question of interest, serious dis- showed a regard for the statutory responsibility of the Society of as the statutory regulator the solicitors’ profession, showed a serious disregard for the Society as a statutory regulator of the solicitors’ profession. Censuring the respondent www.lawsocietygazette.ie • • • • • c) a) b) In the matter of Michael practising Hinkson, solicitor, as Hinkson Solicitors, Fields Churchtown, Dublin Corner, 14, and in the matter of an application by the Law Society The tribunal took into account the following findings of misconduct on the part of the respondent solicitor previously made by them (and their predecessors, the Disciplinary Committee) and not rescinded by the High Court and in respect of the respondent namely: solicitor, n) Through her conduct, Through her conduct, n) Through her conduct, o) order: The tribunal made an LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 56 BRIEFING 57 and Solicitors’ JAN/FEB 2009 JAN/FEB , SI no 421 of 2001, in a www.lawsocietygazette.ie Failed to ensure that there Failed to ensure that was furnished to the Society was furnished to the Society report for an accountant’s the year ended 31 December 2006 within six months of that date, in breach of regulation 21(1) of the Solicitors’ Accounts Regulations 2001 timely manner, Through their conduct, showed disregard for their statutory obligations to comply with the Accounts Regulations showed disregard for the statutory obligation Society’s to monitor compliance Elizabeth Farquharson and Elizabeth Farquharson A Stokes William solicitors) (respondent 2008, theOn 28 October Trib- Solicitors Disciplinary unal found the first-named and therespondent solicitor second-named respondent solicitor guilty of misconduct inin their practices as solicitors that they: a) b)
LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW n de se familiariser avec les institutions fi 5,000 to the er d’une assurance couvrant votre responsabilité € fi civile personnelle pour les dommages subis ou ceux que vous causeriez aux tiers. Ce stage se déroule aux mois d’octobre et novembre de Ce stage se déroule aux mois d’octobre et novembre jours chaque année et il comprend un séjour de deux à Bruxelles a communautaires. Pour être sélectionné, le candidat doit: • être avocat inscrit à un barreau, • être parfaitement francophone, • être âgé de moins de 35 ans, • justi Si vous êtes intéressés, contactez Eva Massa pour recevoir des renseignements ([email protected]) complémentaires. Date limite: 28 Fevrier 2009. Failed to provide the closing Failed to provide Solicitors Acts 1954-2002 documents to his colleague documents manner or at all, in a timely the premier and in particular which is still certificate, outstanding. Do stand censured, Pay a sum of the Law Society of Ireland, of as taxed by a taxing master of the High Court, in default agreement. compensation fund, of Pay the whole of the costs a) b) c) f) The tribunal ordered that the The tribunal ordered respondent solicitor: In the matter of Elizabeth and Farquharson, solicitor, William A Stokes, solicitor, carrying on practice under the style and title of Herman Solicitors, Good & Company, at 22/23 Dawson Street, Dublin 2, and in the matter of the [3188-5032/DT83/07] Law Society of Ireland (applicant)
completion documentation, completion consent of the without the complainant, respond to Failed to direction of the Complaints and Client Relations Committee at its meeting of 12 December 2007 to furnish a progress report to the Society on or before 15 January 2008, Society’s correspondence Society’s the and, in particular, letters of 14 March Society’s April 2007, 2 April 2007, 13 21 2007, 23 April 2007, 19 May 2007, 27 June 2007, October 2007, 8 November 2007, 17 December 2007, the Failed to comply with High Court order dated 8 October 2007, which order directed the solicitor to respond appropriately to the correspondence in Society’s relation to this complaint, Failed to comply with the the complainant’s corres- the complainant’s pondence, to the Failed to respond e) d) b) c)
182,900 Solicitors € [6919/ STAGE INTERNATIONAL A PARIS A INTERNATIONAL STAGE Ce programme est destiné à des avocats étrangers francophones désireux de découvrir la pratique de leurs confrères français à travers un enseignement de qualité et Ainsi ces jeunes une expérience au sein d’un cabinet parisien. avocats reçoivent-ils pendant un mois un enseignement à l’Ecole de Formation du Barreau portant notamment sur leur déontologie, leur système juridique et leur procédures judiciaires. Puis, ils acquièrent, à travers un stage d’un mois, une expérience professionnelle concrète de la vie au sein d’un cabinet d’avocats parisien. Aux mois de septembre et octobre, le barreau de Paris organise Aux mois de septembre et octobre, le barreau de une chaque année le Stage International. Ce stage constitue opportunité extraordinaire, pour les professionnels du droit à l’international, de découvrir et de pratiquer le droit français, au coeur de Paris.. Released funds of the Law Society of Ireland, the Law Society a taxing master of as taxed by in default of the High Court, agreement. Do stand censured, Do stand censured, of the costs of Pay the whole furnished to him on 11 October 2006, which funds were to be held on trust pending the furnishing of a) a) b) On 23 October 2008, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: In the matter of Patrick In the matter of pract- Gillespie, a solicitor & ising as P Gillespie at Bury Solicitors, Company, and Street, Ballina, Co Mayo, in the matter of the Acts 1954-2002 DT44/08] Law Society of Ireland (applicant) Patrick Gillespie solicitor) (respondent www. 5,000 to the € G
500 towards the costs of Failed to adequately respond Failed to adequately Visit our website at lawsociety.ie lawsociety.ie or contact us directly by email: companyformation@ lawsociety.ie, tel: 01 672 4914/6, fax: 01 672 4915 Law Society of Ireland Blackhall Place Dublin 7 the Society’s investigation, the Society’s Failed to reply adequately to advised, Pay a sum of the Law Society of Ireland, or of any person appearing before them, as taxed by a taxing master of the High Court, in default of agreement. to the complainant’s letters to the complainant’s March 2005, 24 dated 10 31 May 2005, May 2005, 21 July 2005, 21 June 2005, 19 September 25 July 2005, 21 2005, 6 October 2005, August 2006, 6 November 2007 2006 and 9 January respectively, Failed to respond adequately correspond- to the Society’s of ence during the course this investigation, resulting in the respondent solicitor of paying a contribution € all of the outstanding matters raised in the complainant’s letter to him, dated 15 August 2007. Do stand admonished and compensation fund, Pay the whole of the costs of a) b) c) c) d) b) The tribunal ordered that the respondent solicitor: 70 € 49 € Solicitors Acts 1954-2002 Law Society of Ireland in Law Society sum identified respect of the owing to the as due and (a) above, Society in charge of Pay the whole of the costs complainant’s letter dated complainant’s 10 March 2005 to provide certain items and to hold monies on trust until these items were resolved, the Law Society of Ireland, the Law Society of as taxed by a taxing master of the High Court, in default agreement. Failed to comply with the a) d) In the matter of John A In the matter of pract- McDonough, solicitor, & ising as McDonough Breen, Solicitors, Distillery Lane, House, Distillery matter Dundalk, and in the by the of an application Law Society of Ireland to the Solicitors Disciplinary of and in the matter Tribunal, the Law Society of Ireland (applicant) John A McDonough solicitor) (respondent On 25 November 2008, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: 25 € 30 € 1,000 to the 1,000 to the € € 1,000 towards the costs 1,000 towards the Failed to comply with the Failed to Pay a sum of manner to the Society’s manner to the Society’s correspondence in respect of the complaint made by the complainant and, in to the Society’s particular, letters seeking a response to letter of the complainant’s complaint dated 3 September 2007. Do stand censured, direction of the Complaints direction of Relations and Client given on 28 Committee 2007 that he November contribution of pay a total € his of the Society for with failure to correspond of the Society in respect named the complaint of a one complainant within month of being informed having of the said direction, letter been so informed by 2007, dated 10 December said and failed to pay the contribution up to the date of the swearing of the Society’s affidavit (on 5 June 2008), Failed to reply in a timely compensation fund, Pay a sum of uk companies also formed also uk companies a) b) c) b) a) The tribunal ordered that the respondent solicitor: SHARE REGISTER BOOKS ANNUAL RETURNS FILED WITH CRO FOR BUSINESS NAMES REGISTERED FOR SEALS COMPANY COMPANY FORMATION SERVICE FORMATION COMPANY
JAN/FEB 2009 JAN/FEB (ex VAT) (ex 255 255
1,000 to the
Solicitors Acts € €
for the protection for the protection Solicitors’ Accounts Solicitors’ Accounts AS LITTLE AS FOR YOU CAN NOW NOW CAN YOU
[6868/DT58/08] FORM A COMPANY COMPANY A FORM Your Company Formation Your Service has been awarded IS EN ISO 9001:2008 by The National Standards Authority of Ireland compensation fund, the Jointly and severally pay a sum of of the whole of the costs as Law Society of Ireland, of taxed by a taxing master the High Court in default of agreement. Jointly and severally pay Jointly and severally with the Regulations the public. of clients and Do stand censured, LAW SOCIETY LAW PRICES REDUCED PRICES www.lawsocietygazette.ie c) a) b) In the matter of John J formerly Kilraine, solicitor, practising as Kilraine & Company at Nile Lodge in the and Galway, Corner, matter of the 1954-2002 Law Society of Ireland (applicant) John J Kilraine solicitor) (respondent On 4 November 2008, the Solicitors Disciplinary found the respondent Tribunal solicitor guilty of professional misconduct in his practice as a solicitor in that he: The tribunal ordered that The tribunal respondent the first-named solicitor and the second-named respondent solicitor: LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 58 BRIEFING 59
Hepatitis Hepatitis C Interpretation High Court, Civil Liability Act JAN/FEB 2009 JAN/FEB Civil Liability Act [FL 15186] (no 23), s18. update (no 25), s5 – (no 41), s47 – , making a claim] … in www.lawsocietygazette.ie
The tribunal held that the STATUTORY INTERPRETATION would be so ordered. If there waswould be so ordered. If the issuea real risk of injustice, could be revisited. Appropriate would beprocedural directions made. C Compensation Tribunal Act C Compensation Tribunal 1997 Act 2005 Section 5(15) of the Act 1997 Compensation Tribunal Cork Plastics Manufacturing Cork Plastics Manufacturing v Ineos & Others (plaintiffs) Limited Compound UK (defendant), Purposive construction and – words Literal interpretation phrases – ‘claimant’ – whether singular incorporating the plural – dependants of hepatitis C victim – claim by dependants – claim for and general damages mental distress by – whether acceptance of award appeal by one dependant precludes other dependants – whether such dependant entitled to appeal totality – of award 1961 provides, among other things, that “an appeal shall lie … by a claimant [who is defined in the act as a dependant, within the meaning assigned by section 47(1) of the 1961 respect of any decision”. Section 5(6) provides that the tribunal shall assess and make any award for general damages on the basis of a single lump-sum award. The tribunal made an award and apportioned it between the various dependants of the deceased, each of whom had made a claim to it for mental distress and general damages. parties did not have claims in 7/3/2008
[FL LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW firstlaw Clarke J held that the Clarke J held that the basic PRACTICE AND PROCEDURE The minister took decisions The minister took that subsequent to the judgment exceeded were alleged to have and her statutory discretion It warranted being quashed. decision was alleged that the of the affected the ability applicant to carry on business. minister was entitled to make the decision, as taken. No case had been set out to the effect that the minister had exceeded her statutory discretion. There was no legal basis to quash the first decision. The second decision challenged did not sufficiently affect rights and entitlements for it to be reviewed. Compiled by Bart Daly for FirstLaw O’Shea Fishing Company Ltd (applicant) v Minister (respondent), for Agriculture Order for a modular trial Principal proceedings – whether single trial of all issues appropriate – whether advantages to having modular trial. In the substantive proceedings at issue, the plaintiffs claimed damages for the alleged supply of defective commercial products. Numerous parties were involved in the proceedings and the issue arose as to whether it was appropriate to order a modular trial, and whether any advantages accrued from the order in light of the procedural challenges at stake. conditions for ordering a modular hearing were present. No significant overlap existed as to evidence for each of the modules. There was a strong case for a modular trial and it High Court, 7/3/2008 15203] – High [FL 15205] News from Ireland’s online legal awareness service Atlantean Limited , it was held that the Irvine J held that JUDICIAL REVIEW into account the constitutional into account the constitutional child rights of the then unborn The and now second applicant. order applicants sought an to directing the respondent reconsider the deportation of the order made in respect applicants and an injunction to prevent the proposed deportation. The issue arose as to what the minister was mandated to consider in exercising his powers. the applicants enjoyed constitutional rights requiring vindication. The applicant had discharged the onus of proof to establish the type of inquiry that the impending birth of the second applicant had established. An order would be made directing the respondent to reconsider the deportation order made. An injunction would be granted to maintain the status quo. E(O) (applicant) v Minister for Justice, Equality and Law Reform (respondent), Court, 4/3/2008 Fisheries law fishing quota Certiorari – mackerel – Scotland – v Minister for Communications and Natural Resources consequences of decision – whether minister exceeded statutory in making decision. discretion In a previous related decision of the High Court in Atlantean Limited v Minister for Communications and Natural Resources minister had not followed fair procedures in deciding that a company had been guilty of undeclared landings relating to a mackerel quota dispute. High – articles [FL 15183] European Arrest – deportation – Niger- Peart J held that, although IMMIGRATION AND ASYLUM LAW CRIMINAL LAW 40.3, 41 of the Constitution – article 8 of the ECHR. The decision of the respondent to deport the Nigerian national father of an Irish child was alleged to have failed to take Judicial review Certiorari ian national – natural father of unborn of child – relevance constitutional rights of child – to take into account rights – failure for minister considerations relevant – whether injunction merited – Immigration Act 1999 Minister for Justice, Equality and Law Reform (applicant) (respondent), v Ward European arrest warrant of – correspondence Surrender offences offences – road traffic to judge – how the court was – perverting the correspondence death course of justice – causing – whether by dangerous driving – correspondence the offence was a summary offence, correspondence had been made out. The court was required to make the order for surrender as sought to the issuing state. Warrant Act 2003. Warrant The applicant sought to surrender the respondent to Britain for offences relating to a road traffic incident. The respondent objected to his surrender on the basis that no correspondence was made out as to the offences in the warrant and that correspondence could only have been made out by reference to the warrant. Court, 4/3/2008
, which [FL Sup- rstlaw.ie. G (Per Kearns J, dissenting): provided that a word importing provided that a word importing as also the singular shall be read importing the plural. was the statutory language not so clear as to suggest that the legislature intended that each dependant should have a separate and distinct claim, and the legislature should not be taken as having intended such an absurdity. v C (respondents/claimants) Minister for Health and (respondent), Children to the tribunal, on a literal to the tribunal, of the 1997 act, construction entitled to appeal. they were word where the Accordingly, used in the act of ‘claimant’ was be interpreted 1997, it should was, as ‘claimants’ where there person in fact, more than one the making a claim under was act. That interpretation of the fortified by section 18 Act 2005 Interpretation ed solicitor or simply wish to reappraise fi 15198] reme Court, 7/5/2008 This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.fi ve years) fi cult times – with optimism fi take stock of their situation, to explore options; and to best position yourself for the future terms of activities and results situations of uncertainty and challenge of dif If, pursuant to procedures If, pursuant to procedures Where a representative Whether you are a newly-quali your situation, this seminar is for you. • or facing career transition: be in an improved position to If out of a job • If employed or considering change: achieve clarity of expectation in • self management in roadmap and tips to support effective Have a • challenge Be motivated to believe in themselves and to face into the on the basis of a single lump- on the basis What was required sum award. 5(6) was that each by section receive a single claimant would award for damages. lump-sum dependants, each In claims by an dependant would receive share award of his apportioned mental of the total award for distress and general damages. pursuant adopted by the tribunal 1997 act, to section 3(11) of the only be a single claim should not deny permitted, that could of appeal a dependant that right as that he would have enjoyed an individual claimant. claim was brought, each person on whose behalf it was brought was nonetheless a claimant and enjoyed the right of appeal provided under the act as such. The award to each such claimant was an award of compensation and could be appealed by him. His position should not be adversely affected by the accident that, as a matter of administrative convenience, a representative claim was brought. As each of the dependants made a claim
, and CPD hours: 3. Group study (management and professional development) Discounted fee*: €50 per person* Skillnet discounted fee*: €35 per person* (*only if you have been admitted in the last Civil Liability Act 1961 Civil Liability Act 1961 Civil Liability that governed the measure that governed in the law of tort of damages relevant statutory and any including part IV of provisions, the were not incorporated into the were not incorporated was such statutory scheme. Nor by any incorporation required There necessary implication. was, therefore, no requirement a single that there should be of all claim by and on behalf the persons coming within in the definition of dependant act. Though the 1997 act spoke throughout of ‘a claimant’ in it was clear from the singular, the nine categories of claimant in section 4(1) that several individual claims could be brought in respect of the same person who had been infected. Those claims did not overlap, and there was no requirement in logic that there should that be a single claim only, construction of the provision was not affected by section 5(6), which provided that the tribunal shall assess and make any award for general or special damages that, on a literal reading of it, that, on a 48(2) the provisions of section of the . JAN/FEB 2009 JAN/FEB were to be KC and KW Civil Liability Act 1961 Civil Liability forecast? This seminar will enable you to harness your professional and At the end of the seminar attendees will: active career decisions and situations Date: Tuesday 31 March 2009 Tuesday Date: 5pm to 8pm Time: Blackhall Place Law Society, Venue: Fee: €120 per person Skillnet fee: €84 per person The Supreme Court MANAGING YOUR CAREER YOUR MANAGING IN CHALLENGING TIMES • • your career on the right track? Is What are the myths and realities of the current market and • • How can you best position yourself for now and the future? can you do to focus and take control of your career? What more than ever a challenging market environment, demanding Today clients and increased competition mean you need to be clear about your own career path. technical strengths into an overall career plan. It will sharpen your awareness of how best to manage your career as it currently exists. It will also enable you to make informed decisions to best position yourself for future career opportunities. • • an overview of the actual realities of the current market Have • Understand the consequent options, challenges and opportunities own style and preferences in terms of Develop a sense of one’s www.lawsocietygazette.ie The deceased’s parents and parents The deceased’s siblings filed a noticenine of his The other partiesof appeal. Highaccepted the award. The held thatCourt (O’Neill J) who hadall of the appellants formssubmitted individual claim in theor who were included claim of regarded as ‘claimants’, and that,regarded as ‘claimants’, by onein the event of an appeal in respector more dependants quantumof an assessment of the or theof general damages award to him of compensation following a division of that award, the appeal had the effect of defeating an acceptance by another dependant. The tribunal appealed to the Supreme Court. dismissed the appeal, holding that the wording of section 5(1) of the 1997 act was clear and prescribed the basis upon which awards of the tribunal should be made, which was on the same basis as an award of the High Court calculated by reference to the principles their own right, but only astheir own within the meaningdependants of the LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 60 BRIEFING 61 precluded ruling JAN/FEB 2009 JAN/FEB Metock In its first question, the The court pointed out that legal of them had entered Ireland asof them had entered with their an asylum-seeker, applications being subsequently each had refused. After entry, frommarried an EU citizen another member state living and working in Ireland. In each case, the third-country national spouse was refused a residence card. In three cases, refusal was based on the sole ground that the applicants could not show prior lawful residence in another member state. In a fourth case, the decision not to grant a residence card was based on the ground that the applicant was unlawfully resident at the time of marriage (but the regulation 3(1) point was considered relevant to a redetermination of the application). In one case, the applicant was subject to a deportation order prior to marriage and was arrested for this purpose after marriage: he failed to obtain an injunction preventing deportation and was deported (to Nigeria) in December 2007. The The High Court referred a number of questions to the ECJ on 14 March 2008. The Grand Chamber of the court delivered its ruling on 25 July 2008. High Court asked whether the Residence Directive national legislation requiring third-country national spouses of union citizens to have previously been lawfully resident in another member state in order to benefit from the directive. no reference was made in the www.lawsocietygazette.ie . has eur European LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW , that, where the . Concerns about abuse Residence Directive Carpenter The requirement for prior The Akrich Communities (Free Movement ofCommunities (Free Persons) (No 2) Regulations 2006 Regulation 3(1), as it first stood, provided that third-country national family members had to be lawfully resident in another EU member state in order to enjoy entry and residence rights. This clearly reflected the ruling in of rights were addressed by a provision that the term ‘spouse’ did not include a party to a marriage of convenience and, by a provision more generally, that a person found to have acquired rights or entitlements by fraudulent means – including marriages of convenience – would immediately cease to enjoy them. lawful residence in another EU member state was challenged in a number of cases before the High Court by four third-country spouses of union citizens. Each been implemented in Ireland by means of the territory of the EC: the third- territory of the EC: couldcountry national spouse residentnot claim to be lawfully soughtin Britain (where he (toto be ‘installed’) or Ireland which he had been deported, joining his wife, and from where they sought to return to Britain) and the court held that there could be no “discouragement” rights of the union citizen’s of free movement in such circumstances. Nevertheless, the court made it plain, referring to marriage was genuine, regard had to be paid to respect for family life under article 8 of the ECHR.
, case Singh Akrich Carpenter EC Treaty Carpenter News from and International Affairs the EU Committee Particular difficulties have However, the idea that a the idea that However, freedoms. arisen in relation to the right to join a free-moving union citizen in his or her member state of The 1992 nationality. case and the 2002 made it clear that third-country national spouses were entitled to own reside in the union citizen’s member state to which he or she had returned (or in family members on groundsfamily members on Inof their illegal residence. thedealing with these cases, priorityECJ has generally given to rules of free movement over national immigration control laws, essentially on the ground that a refusal to accord family reunification rights would discourage the exercise of fundamental from which he was providing services), even though the third- country national concerned was not lawfully resident under national immigration laws. third-country national spouse should have community law entry and residence rights in all member states to which the union citizen moved, including his or her country of origin, was challenged in the 2003 case. The court there ruled that a third-country national married to a union citizen could only benefit from ‘installation’ rights under regulation 1612/68 where he or she was lawfully resident in a member state before moving to another member state to which the union citizen was moving or had moved. The case concerned the rights of the third-country national spouse with regard to access to the Edited by TP Kennedy, DirectorLaw Society of Ireland of Education, Edited by TP Kennedy, ). family reunion family citizenship and union Residence Directive
uropean legislation has longuropean legislation has ofrecognised that a national In a number of cases, member Previous provisions were
Metock: E states have sought to refuse entry to, or expel, third-country Under article 3(1), rights of free movement and residence are to be enjoyed by “all union citizens who move to or reside in a member state other than that of which they are a national” and to their family members who “accompany or join them”. Such family members include spouses and, as far as the basic rights of entry and residence are concerned, the nationality of the spouse is not relevant. Restrictions on entry and residence of family members are tightly drawn. They may be justified on strictly defined grounds of public security or public policy, public health. Member states may also adopt the necessary measures to refuse, terminate or withdraw any directive right in the case of abuse of rights or fraud, such as marriages of convenience. Such measures are to be proportionate and subject to procedural safeguards. repealed with effect from 30 April 2006 and replaced by provisions in directive 2004/38 on the right of citizens of the union and their family members to move and reside freely within the territory of the member states (the a EU member state exercisinga EU member state hasrights of free movement the right to be accompanied by certain family members, including his or her spouse, even where they are third-country nationals. First, the time at which theFirst, the time Second, it made no Once the third-country family was founded was notfamily was of the provisionsmaterial. None directive requiredof the 2004 citizen already tothe union a family at thehave founded the hosttime of moving to thatmember state. By providing ‘join’ thefamily members could union citizen, the legislature that aaccepted the possibility afterfamily could be founded exercisedthe union citizen had the right to free movement. with theThis was consistent whichpurpose of the directive, exercise“aims to facilitate the of the fundamental right of residence of union citizens in a member state other than that of which they are a national”. The failure of a member state to admit family members where the family had been founded after entry would discourage the union citizen from continuing residence and would encourage him to leave in order to achieve family reunion elsewhere. difference whether the third- country national entered before or after becoming a since a refusal family member, to grant residence would be equally liable to discourage the continued residence of the union citizen. Given the need not to interpret the directive’s provisions restrictively and not to deprive them of their effectiveness, ‘family members’ were thus those who entered with the union citizen as well as those who resided with him (irrespective of when they entered the state and when they become family members). The court added that application of the directive solely to family members who “accompanied” or “joined” the union citizen would be “equivalent to limiting the rights of entry and residence of family members of a union citizen to the member state in which that citizen resides”. national family member derived rights of entry and residence The second argument was The second question referred The court responded the member states to controlthe member at their externalimmigration could result in afrontiers and in the number ofgreat increase to benefit from apersons able right of residence.community that itThe court responded nationalwas only third-country unionfamily members of rightscitizens who enjoyed andunder the 2004 directive, nationals.not all third-country theThe member states retained entrypossibility of controlling policy, on grounds of public health,public security or public orand could refuse, terminate withdraw rights in the case of abuse of rights or fraud, such as marriages of convenience. interpretation that the court’s of the 2004 directive would lead to unjustified reverse discrimination insofar as non- free-moving nationals of the host member state would not derive rights of entry and residence from community law for their third-country national family members. The court referred to its settled case law on situations internal to a member state and stated that “any difference in treatment between those union citizens and those who have exercised their right to freedom of movement, as regards the entry and residence of their family members, does not fall within the scope of community law”. For good measure, it added that all of the member states were party to the ECHR, which enshrined in article 8 the right to respect for private and family life. by the High Court was whether the third-country national spouse of the union citizen ‘accompanied’ or ‘joined’ that citizen within the meaning of article 3(1) of the directive, irrespective of when and where the marriage took place and the circumstances in which he/she entered the host member state. affirmatively to this question. Family would The court made two points The court then considered of third-country national familyof third-country a union citizen.members of the communityNoting that – underenjoyed competence 40, 44 and 52 ECarticles 18(2), necessary measures– to enact ofto bring about freedom citizens,movement for union that thethe court stated couldcommunity legislator of familyact where the denial thereunion would discourage exercisingunion citizen from Therights of free movement. memberrefusal of the host entry tostate to grant rights of “such asfamily members was to” discourage the union citizen from moving to or residing there, even if the family members were not already lawfully resident in the territory of another member state. The community legislator thus had competence to regulate the entry and residence of third-country national family members in such cases. supporting this conclusion. First, to recognise such exclusive competence on the part of the member states would result in varying positions as between the member states, which would not be compatible with the internal market objective set out in article 3(1)(c) EC. The establishment of an internal market implied that the conditions of entry and residence of a union citizen in a member state whose nationality he did not possess were the same in all member states. Second, to support the Irish position would lead to the paradoxical outcome that third-country nationals under the 2003 Reunification Directive have the right to be joined by dependants in circumstances where a union citizen would not. be noted (It should, however, that Ireland has not signed up to the 2003 directive.) and dismissed two further arguments. The first was that to remove the ability to require prior lawful residence would undermine the ability of EC EC JAN/FEB 2009 JAN/FEB had to for the Akrich a fortiori was then addressed. . , to regulate the first This interpretation wasThis interpretation In a carefully set out Akrich www.lawsocietygazette.ie directive to any requirement ofdirective to residence. Had thisprior lawful this would havebeen envisaged, in the directive’s been reflected directive thus hadwording. The as applying toto be interpreted membersall non-national family theaccompanying or joining or notunion citizen, whether inthey already resided lawfully another member state. case supported by the court’s onlaw on secondary legislation priorfree movement adopted whichto the 2004 directive, recognised the importance attached by the community legislature to protecting the family life of nationals of the member states in order to eliminate obstacles to the exercise of fundamental freedoms guaranteed by the Treaty 2004 directive: since it aimed to strengthen the right of free movement and residence of union citizens, union citizens could not derive less rights from that directive than from the instruments of secondary legislation that it amended or repealed. argument, the court held that this interpretation was consistent with the division of competences between the member states and the It rejected Irish and community. other member state arguments that the member states retained exclusive competence, subject to title IV of part 3 of the Treaty access to community territory be reconsidered since, as earlier “the case law had made clear, benefit of such rights cannot depend on the prior lawful residence of such a spouse in another member state”. This reconsidered interpretation was to be adopted Even in relation to the rights in article 10 of regulation 1612/68, the court stated that the conclusion in LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 62 BRIEFING 63 judgment G Metock
, the Irish government JAN/FEB 2009 JAN/FEB The court can neverthelessThe court priorThe requirement of The Akrich be criticised for its very loosebe criticised or indeed for itsinterpretation, the requirementsdismissal, of family memberthat the or join” the union“accompany time, thecitizen. At the same couldauthors of the directive precisehave been rather more differenthad they intended a result. be seenlawful residence may tardyas a rather blunt and instrument of immigration the approach By adopting policy. in imposed a requirement that had no direct bearing on the status third country national’s in Ireland. Indeed, for most of those concerned, the fact of illegal residence was not used as a ground for refusal. The whole saga has exposed an inability to deal with illegal immigration at source and with the question of abuse, including marriages of convenience. Thought will have to continue to be given at national and community level to dealing with these issues and as to the nature of the proportionate measures that may be employed. may – seen from the optic of a lawfully married union citizen – be correct as to its result, but the way in which the court arrived at this result may nonetheless be questioned. Absent a clearly established marriage of convenience or other abuse of rights, the third-country national spouse will now be able to join the union citizen from outside the EU and enjoy community rights of entry and residence. As for non-free-moving Irish nationals and third-country nationals seeking family reunion rights, increased attention will doubtless be focused on article 8 of the ECHR. www.lawsocietygazette.ie John Handoll is head of the Competition and Regulation Unit Solicitors. Fry, in William . Strictly LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW Akrich completely, since completely, Akrich It remains to be seen how The key issue was whether It should be remembered amendments to the directive.amendments that a group it noted However, from the memberof experts been appointed tostates had and clarifyidentify difficulties interpretation. Theissues of abuseissues of criminality and andrequired further discussion statesclarification and member providewere being asked to includingmore information, practice.statistical data and best benefitGuidelines for the unionof member states and in thecitizens would be issued tofirst half of 2009 in relation as theproblematic issues such fight against abuse. the council will respond to this approach. Comments A number of brief comments can be made on this important judgment. the requirement to show prior lawful residence in another member state discouraged the free movement of the union citizen. In holding that the failure to facilitate family reunion had such an effect, the court explicitly departed from its approach in speaking, the case does not kill off the directive does not apply to entry and residence in the union own member state, citizen’s but even in this case it seems that the last rites have been administered. that the primary right is that of the union citizen exercising free movement. Provided there has been no abuse of rights, there seems little justification for treating spouses with derivative rights differently depending on whether they have third- country or EU member state In the absence of nationality. narrowly defined public policy/ security/health grounds or abuse of rights, the mere fact of illegal residence will not trump the right to family reunion.
-based Metock involved , in order Akrich Metock were asylum inter alia Metock Ireland and Denmark have report was The commission’s Ireland is apparently troubledIreland is apparently with “marriages of convenience” ofand a significant number rightspersons refused residence before seekers with the “tendency toseekers with the “tendency marry at points of jeopardy in the asylum/deportation process”. The application of the public security public policy, or public health derogation to such cases, would, according to one official, create a “huge administrative burden”. raised the issue in the Justice and Home Affairs (JHA) Council and the implications of in the context of tackling illegal immigration were discussed by the JHA Council in September 2008. The commission stated that it would be presenting a report on the transposition of the 2004 directive by the end of 2008 and that it would “be prepared, on the basis of that evaluation, to present all appropriate guidelines or proposals which might prove necessary, to combat any misuse, offences or abuse”. The council was to examine the issue immediately thereafter. published in early December. It noted that the requirement of prior lawful residence had been applied by 11 member states. It also noted that article 35 (abuse of rights) had, despite its importance, not been transposed by all member states. Pointing out that none of the cases in marriages of convenience, it concluded that, at this stage, it was not necessary to propose Metock The Irish government, Third, the court simply with support from some other member states, is campaigning for an amendment to the 2004 directive to counter abuse. According to press reports, The Irish government adopted regulations amending the offending part of the 2006 regulations only four working days after the court delivered its judgment. In respect of family members who are not union citizens, the requirement of prior lawful residence has now been removed and a distinction is now drawn between those who seek (i) to enter the state in the company of the union citizen family member(s), and (ii) “to join those union citizens, in respect of whom they are family members, who are lawfully in the state”. The aftermath of stated that the directive did not contain any requirements as to the place where the marriage is solemnised. The court appeared to be suggesting that the absence of provisions requiring the marriage to be solemnised outside the host member state meant that the marriage could take place there, thereby negating any idea of accompanying or joining across member state borders. from the directive, these rightsfrom the directive, be restricted incould only with articles 27compliance and 35 of(general principles) (abuse of rights).the directive state wishedIf the member to penalise the third-country residencenational for entry or in breach of its immigration articlerules, compliance with The27 would be required. accepted that, court, however, ofeven if the personal conduct did notthe person concerned ofjustify measures on grounds security, public policy/public imposethe member state could proportionate penalties that did not interfere with freedom of movement. Co Co Galway Co Kildare Co Galway Co Galway Co Laois Co Kerry Co Kerry Co Kerry Co Kilkenny Co Leitrim Co Galway Co of Clonmacnowen; folio: 20867F; lands: townland offolio: 20867F; lands: townland ofStradbally North and barony hectares;Dunkellin; area: 1.2140 Co Galway lands:(deceased); folio: 30019F; andtownland of Ballindooley barony of Galway; Gurranbaun, Lavally, Tuam, Tuam, Gurranbaun, Lavally, ofCo Galway; lands: townland More,Gurranbaun, Meelick Mananagh and barony of Ballymoe; Co Galway folio: 49860F; lands: townland of Lisheenkyle East, Caherbriskaun, Derrydonnell North and barony of Clare, Dunkellin; 14161; lands: townland of Kill (Ballindoon PH) and barony of Ballynahinch; area: 6.1663 hectares; Co Galway Kathleen Folan; folio: 2954L; lands: townland of Rahoon and barony of Galway; folio: KY4877; lands: townland of Knockbrack and barony of Trughanacmy; KY48882F; lands: townland of Ballydavid and barony of Corkaguiny; Mary Corrigan, 32 Glendale Meadows, Leixlip, Co Kildare; folio: 19982F; lands: the parish of situate in the townland Confey, known as 32 Glendale of Confey, Meadows, Leixlip, Naas, in the barony of Saltnorth, in the electoral division of Leixlip; folio: KY29862; lands: townland of Annagh and barony of Trughanacmy; 5789; lands: Ardra and barony of Fassadinin; and Thomas Kennedy; folio: 4432 x 2 (tenant-in-common); lands: Furzehouse and Shillelogher; Kilkenny and Kathleen Butler; folio: 772L; lands: Maryborough and barony of Maryborough; 53041; lands: townlands of Kilbocht and Drought and barony of Leitrim; PO, Fenagh, Co Leitrim; folio: 3404F; lands: Drumgowla, Drumgownagh and Drumconny; Co Leitrim Regd owner: Thomas Linnane;Regd owner: Thomas HoganRegd owner: Bridget Regd owner: Daniel Walsh; folio: Regd owner: Daniel Walsh; Regd owner: Thomas Hession; Regd owner: Joseph O’Toole; folio: Regd owner: Joseph O’Toole; Regd owner: Patrick Folan and Regd owner: Daniel Emperor; Regd owner: Bridget Moran; folio: Regd owner: Stephen Corrigan and Regd owner: Michael O’Shea; Regd owner: Eugene O’Driscoll; folio: Regd owner: Patrick Kennedy (Junior) Regd owner: James Graham (deceased) Regd owner: James Dervan; folio: Regd owner: John Ellis TD, Foxfield Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Galway Co Dublin Co Dublin DN9191; lands: property situate inDN9191; lands: of Rathmooney andthe townlands barony of Balrothery; property situateDN66131F; lands: of Ballisk Commonin the townland and barony of Nethercross; Dublin as ExelLimited (now known (Ireland)Freight Management lands:Ltd); folio: DN83738L; property situate in the townland Great and barony of of Turnapin Coolock; lands:Corrigan; folio: DN96034F; property situate in the townland ofof Murphystown and barony Rathdown; folio: DN101901L; lands: property being an apartment known as Clarion Apt no 7, Block Floor, International Excise Walk, Quay, Financial Services Centre, together with car space at basement level, in the parish of St Thomas and in the district of North Central and in the county of Dublin; McDonagh; folio: DN127834F; lands: property known as site no 27 Bramblefield Crescent, off the Navan Road, Blanchardstown, in the townland of Huntstown and barony of Castleknock; DN1334F; lands: property situate in the townland of Carrickhill and barony of Coolock; DN11400F; lands: property situate in the townland of Kilbogget and barony of Rathdown; Maeve Kennedy; folio: DN17070; lands: a plot of ground situate on the north side of ‘Abbeyfield’ in the parish and district of Killester and city of Dublin; Regd owner: Michael Hoey; folio:Regd owner: Margaret Bannon; folio:Regd owner: HaulageRegd owner: Cassin Road and SineadRegd owner: Andrew Daly Sheehan;Regd owner: Anne Marie Regd owner: John Dolan and Mary Regd owner: Mary McGowan; folio: Regd owner: Thomas Costello; folio: Regd owner: Stephen Freeman and Chaney; folio: Regd owner: William Co Galway Co Co DN19676; lands: a plot of ground situate to the north of Howth Road on the south side of Middlethird in the parishes of Clontarf and district of Killester and Killester, city of Dublin; and Maire O’Donoghue; folio: 56431; lands: townland of Claretuam and barony of Clare; area: 21.3320 hectares; Margaret Keane; folio: 10959F; lands: townland of Maumeen and barony of Moycullen; area: 0.3040 hectares; (deceased); folio: 8510; lands: townland of Kilmalaw and barony Regd owner: Thomas O’Donoghue Regd owner: Frank Keane and Regd owner: Martin Kenneth Lyons Co Cork Co Dublin Co Cork Co Cork Co Donegal Co Cork Co Donegal Co Cork Co Cork Co Cork Mary Dympna O’Boyle; folio:Mary Dympna O’Boyle; 2095L; lands: plot of ground situate in the townland of Killetra and barony of Fermoy in the county of Cork; North and barony of Bantry in theNorth and barony county of Cork; of ground situate7228; lands: plot of Moanroe (EDin the townland barony of Orrery andMilford) and county of Cork; Kilmore in the Cork plot ofFoley; folio: 4985F; lands: ofground situate in the townland ofBallycunningham and barony ofMuskerry East in the county Cork; Limited;Community Council groundfolio: 63313F; lands: plot of situate in the townland of Buttevant Kilmoreand barony of Orrery and in the county of Cork; (deceased); folio: 5788F; lands: plot of ground situate in the townland of Raleigh North and barony of in the county of Muskerry West Cork; Society Limited; folio: 23404; lands: plot of ground situate in the townland of (1) Ballynoe, (2) Ballinscurloge and barony of (1) Kinatalloon, (2) Kinatalloon and both in the county of Cork; Cork Margaret O’Sullivan; folio: 59176; lands: plot of ground situate in the townland of Kilmackowen, known as Argave, Kilmacowen, Eyeries in the county and barony of Bear, of Cork; Edward O’Carroll; folio: 36633; lands: plot of ground situate in the townland of Knocknagore and in the barony of Kerrycurrihy, county of Cork; Co Limited, Glebe, Letterkenny, Donegal; folio: 53203F; lands: Cullion; Co Carrickbrack Road, Baily, Dublin; folio: 35179; lands: Toberkeen; DN45179F; lands: property situate in the townland of Drinan and barony of Coolock; Kelly; folio: DN473L; lands: property known as no 88 Home Farm Road, situate on the south side of the said road in the parish of Clonturk, district of Drumcondra; Co Dublin Regd owner: Michael O’Boyle andRegd owner: Michael O’Boyle Regd owner: Denis Holmes; folio:Regd owner: and MaryRegd owner: David Foley MuintirRegd owner: Buttevant Regd owner: Aileen Rose Driver Co-operative Regd owner: Waterford Regd owner: Patrick J O’Sullivan and Regd owner: Bridget O’Carroll and Regd owner: Liam Doherty and Son Regd owner: Crona Byrne, Onslow, Regd owner: Billy Griffen; folio: Regd owner: Ciaran Kelly and Carmel Co Co JAN/FEB 2009 JAN/FEB Co Cavan
Co Cavan Co Cavan Co Clare Co Cork Mullagh, Kells, Co Meath; folio: 3474F; lands: Clonarney, Cornaglare and Corlat; Carolan Sheridan and Company, Carolan Sheridan and Company, Solicitors, Bailieborough, Co Cavan; folio: 9564F; lands: Killeter; Co Cavan Geary, Billy Cotter, Frank Murphy, Frank Murphy, Billy Cotter, Geary, Donal O’Niollain; folio: 27230F; lands: plot of ground situate in the townland of Pembroke, known and barony of as Passage West, Kerrycurrihy and in the county of Cork; 25376; lands: townland of Formoyle and barony of Oughteragh (West) Inchiquin; area: 13.0005 hectares; Co Clare Development Company; folio: 1887L; lands: townland of Smithstown and barony of Bunratty Lower; Clare Ballyjamesduff, Co Cavan; folio: 32F; lands: Drumfomina and Lismeen; 17736; lands: townland of Clonroad More and barony of Islands; Tullyco, Cootehill, Co Cavan; folio: Cootehill, Co Tullyco, 26849; lands: Tullycoe; Cavan Fyhora, Moyne, Co Longford; folio: 1150; lands: Stragelliff; 4119F; lands: plot of ground situate in the townland of Dromleigh LOST LAND CERTIFICATES www.lawsocietygazette.ie Regd owner: Frank Smith, Corlat, Regd owner: Liam Flanagan, c/o Registration of Deeds and Title Acts of Deeds and Title Registration 1964 and 2006 has been received fromAn application mentionedthe registered owners an orderin the schedule hereto for certificatedispensing with the land specifiedissued in respect of the lands landin the schedule, which original been lostcertificate is stated to have The landor inadvertently destroyed. withcertificate will be dispensed in theunless notification is received the dateregistry within 28 days from that theof publication of this notice andoriginal certificate is in existence otherin the custody of some person Any such than the registered owner. groundsnotification should state the on which the certificate is being held. Property Registration Authority, Chancery Dublin 7 Street, (published 6 February 2009) Regd owner: Paddy Keane, Brian Regd owner: Patrick Hehir; folio: Regd owner: Shannon Free Airport Regd owner: Peter A Skelly, Lismeen, Regd owner: Peter A Skelly, Regd owner: John C McCarthy; folio: Regd owner: James Francis O’Rourke, Regd owner: Bernadette Duffy, Regd owner: Bernadette Duffy, Regd owner: Frank Power; folio: LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFINGPROFESSIONAL NOTICES 64 Co Co Co Co BRIEFINGPROFESSIONAL NOTICES 65 : Co Wexford Gazette Co Wexford Co Wexford Co Wexford JAN/FEB 2009 JAN/FEB 33 EXTRA € folio: 8918; lands: Courtclogh Upper and barony of Ballaghkeen South; Kathleen Lindsey (deceased); folio: 1407F; lands: Bolany and barony of Gorey; Frances Doyle; folio: 12677; lands: Murntown and Harristown Little and barony of Shelmaliere West; Co Wexford and Elizabeth Moorehouse; folio: 13740; lands: Killagoley and barony of Ballaghkeen South; Wexford and Elizabeth Moorehouse; folio: and 13761; lands: Templeshannon barony of Ballaghkeen South; Wexford Harry Farrell (Junior), Gerard Farrell, Joseph Farrell and William Lane, Rathcoole, Farrell, all of Tay Co Dublin; folio: 19195F and 7044F; lands: townland of Middletown and barony of Ballaghkeen North and electoral division of Ardamine; area: 5.6174 hectares and 7.592 acres respectively; Dawn Tanner; folio: 13837F; lands: Dawn Tanner; Hilltown and barony of Forth; Wexford 16584F; lands: Enniscorthy and barony of Scarawalsh; Wexford and Mary O’Donoghue; folio: 17165; lands: Horetown and barony CHEQUES SHOULD Regd owner: Felix A Molloy and Regd owner: James Doyle and Regd owner: Christopher Moorehouse Regd owner: Christopher Moorehouse Regd owner: Harry Farrell (Senior), Regd owner: William Tanner and Tanner Regd owner: William Regd owner: Mary Doyle; folio: Regd owner: Thomas O’Donoghue www.lawsocietygazette.ie
office on tel: 01 672 Co Co Co Gazette Deadline for March Co Tipperary Co Tipperary Co Tipperary Co Sligo Co Sligo Co Sligo LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at € – Co Waterford lands: townland of Bunduff and barony of Carbury; area: 6.652 hectares; (deceased); folio: 23912; lands: and barony of townland of Teesan Carbury; folio: 3480; lands: townland of Carrowmore and barony of Carbury; folio: TY28837F; lands: townland of Bowling Green and barony of Eliogarty; and Christine O’Casaide; folio: TY7177F; lands: townland of Lackmore and barony of Owney and Arra; Siobhan O’Brien; folio: 7171F; 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at Regd owner: Kevin McGowan Regd owner: Mary Ellen Feeney; Regd owner: Marguerita Kenihan; Regd owner: Tomas O’Casaide Regd owner: Tomas Regd owner: Padraig O’Brien and € – Co lands: plot of ground situate in the townland of Russellstown New and barony of Glenahiry in the county of Waterford; and Catherine Cheasty (deceased); folio: 3054F; lands: plot of ground situate in the parish of Trinity known as 3 Hawthorn Without, Carrickbeg, and Grove, Hillview, in the county of Waterford; Waterford Mullingar Road, Castlepollard, folio: 16528; Co Westmeath; lands: Kinturk Demesne; Westmeath Swellan, Cavan, Co Cavan; folio: 1872; lands: Habsborough; Westmeath 144.50 per deed (incl VAT at 21.5%) 144.50 per deed Regd owner: Michael Joseph Cheasty Regd owner: Ms Catherine Farrell, Regd owner: Thomas Duignan, Regd owner: James Leacy (deceased); € Co Mayo – 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at Co Monaghan Co Mayo € Co Mayo Co Mayo Co Offaly – Co Monaghan Co Roscommon Co Roscommon Employment/miscellaneous Lost land certificates Wills Title deeds
• • • • These rates will apply from January 2009 until further notice from January 2009 until further These rates will apply LAW SOCIETY Newtownbutler, Clones, Co Newtownbutler, Monaghan; folio: 1979F; lands: Clondergole; lands: townland of Garryduff and barony of Carra; folio: 18309F; lands: townland Beg, Rathrushel and of Tawnagh barony of Gallen; folio: 50792; lands: townland Breaghwy), (ED of Tully Clogherowan, Lugaphuill and barony of Carra; 19645 and 47975; lands: townland of Derrypark and Derry and barony of Ross and Owenbrin; Kingscourt, Co Cavan; folio: 7105; lands: Lavagilduff; Conboy; folio: 14530; lands: and barony townland of Tawnagh area: 14.0628; of Tirerrill; Sligo Attracta O’Boyle; folio: 9203F; folio: 6826; lands: townland of Ballaghaderreen and barony of Costello; Theresa Melvin; folio: 10358F; lands: townland of Cloonargid and barony of Frenchpark; area: 0.112 hectares; Bernadette Scally; folio: 7525F; reference: S2008TJ000386A; lands: Puttaghan (Ballycowan By), and barony known as Arden View of Ballycowan; HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – HIGHLIGHT YOUR NOTICE BY PUTTING RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: NOTICE SECTION ARE RATES IN THE PROFESSIONAL Regd owner: Michael Sheerin, Regd owner: Cornelius Hyland; Regd owner: Martin Nally (deceased); folio: Regd owner: Martin Walsh; Regd owner: John McCabe, Lisagoan, Regd owner: Aldeline Jane Helen Regd owner: Daniel O’Boyle and Regd owner: Raymond Devine; Regd owner: Patrick Melvin and Regd owner: Gerard Scally and 4828 (fax: 01 672 4877) 18 February 2009. For further information, contact the 18 February 2009. For further information, BE MADE PAYABLE TO LAW SOCIETY OF IRELAND. BE MADE PAYABLE TO LAW SOCIETY ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE PAID FOR PRIOR PROFESSIONAL NOTICE RATES NOTICE PROFESSIONAL Gazette Gazette Co Co Co Co Co Co Mayo Co Louth Co Louth Co Mayo Co Limerick Co Louth Co Leitrim Co Limerick Co Limerick Cloontumpher, Bornacoola, Cloontumpher, folio: 873; lands:Co Leitrim; Cloontumpher, Cloonmorris, Meelragh; Andreina Coffey; folio: LK2580F; lands: townland of Newcastle and barony of Clanwilliam; Limerick LK2669, LK2670; lands: townland ofof Ballynash (Clare) and barony Shanid; folio: LK2900L; lands: townland offolio: LK2900L; and barony of NorthShannabooly Liberties; Limerick 24837F (part 7516F) Co Limerick; lands: townland of Mountplummer and barony of Glenquin; Limerick Apartment 2, Bridewell Court, Carlow; folio: 7635; Co Carlow, lands: Caldragh and Corry; Longford Margaret Smith, Derryoghill, Killashee, Co Longford; folio: 4504F; lands: Kilbride; Longford Regional College, Dublin Road, Dundalk, Co Louth; folio: 1952L; lands: Marshes Upper; LK3581; lands: Glebe and baronyLK3581; lands: Glebe and of Coshma; Ann O’Driscoll; folio: LK49545F; lands: townland of Ashroe and barony of Owneybeg; Bernadette Brophy; folio: 20959F; Newtownbalregan, Dundalk, Co Louth, and James Quigley, Castletown, Dundalk, Co Louth; folio: 9970; lands: Castletown, Newtownbalregan, Knockagh, Christina Ann Farrelly, Hackballscross, Dundalk, Co Louth; folio: 2870F; lands: Knockagh; Dominick Geoffrey Edward, baron Oranmore and Browne; folio: 11025; lands: townland of Derry (ED Crossboyne) and barony of Clanmorris; area: 1.7086 hectares; Co Mayo (deceased); folio: 35135; lands: townland of Rosmoney and barony of Burrishoole; 49575F; townland of Ballysakerry and barony of Tirawley; Regd owner: Thomas P Kelleher, Thomas P Kelleher, Regd owner: Regd owner: Michael Coffey andRegd owner: Michael Coffey folio:Regd owner: Bridget Lenihan; Regd owner: Edmond O’Donnell;Regd owner: Regd owner: Denis O’Keeffe; folio: Ambrose Beatty; Regd owner: Walter Regd owner: Kevin Smith and c/o Regd owner: John P Gallagher, Regd owner: William Lenihan; folio: Regd owner: William andRegd owner: Patrick O’Driscoll Regd owner: Thomas Brophy and Regd owner: James Quigley, Regd owner: James Quigley, Regd owner: Denis Farrelly and Regd owner: the Right Honourable Regd owner: Romilly Larken Regd owner: Gerard Flannelly; folio: late of Firmount, (retired box no All enquiries to deceased, who died on 29 Marchdeceased, who contact James J Kelly1945, please Co & Son, Solicitors, Templemore, email: tel: 0504 31278, Tipperary; [email protected] knownSmyth, William (otherwise as Bill Smyth), died on 2Castlelyons, Co Cork, who person any November 2008. Would made byhaving knowledge of a will or if anythe above-named deceased, contactfirm is holding same, please 9Healy Crowley & Co, Solicitors, Co Cork; Fermoy, O’Rahilly Row, email:tel: 025 32066, fax: 025 32231, [email protected]
late late of Small to medium-size solici- tors practice required – North region – Sligo/Donegal/ West Leitrim Interested in selling your legal to stay on practice? Wishing as a consultant full-time or to retire? part-time? Wishing If interested, please contact the box number referred to below. to take over current Willing staff of firm. Genuine enquiries only please. All enquiries and communications will be treated in the strictest of confidence and a confidentiality agreement can be signed and furnished if desired. Please reply to 0109/01 – intoxicatingFull off-licence liquor licence (spirits, beer and wine) – for sale. Solicitors, Sreenan & Company, Kenmare: 064 664 2656, fax: 064 664 2658 in the Dublin 7 area. Would suit in the Dublin 7 area. Would MISCELLANEOUS shop assistant), late of Bank Place, Castletownbere, Co Cork. Would any person having knowledge of title documents pertaining to property at Bank Place, Castletownbere, in the name of the above-named deceased, who died on 29 June 2007, please of 96 contact Mary Dorgan, solicitor, South Mall, Cork; tel: 021 427 6556 Serviced office (solicitor’s office) tooffice) (solicitor’s Serviced office let newly qualified solicitor starting out on their own. Fully furnished office with storage space, shared client room and reception area, full use of the fax machines and photocopiers etc; please for information on 01 contact Tina 882 4344 Harrington, Nora (deceased) late of Ballyknock, late of Bawnballinlough, late of 9 Emmet Street, county of Dublin. Would any person Would county of Dublin. of a will executedhaving knowledge whoby the above-named deceased, pleasedied on 14 August 2008, Company, contact Peter Morrissey & LowerSolicitors, Merrion Building, Merrion Street, Dublin 2 Bridget (deceased), Lynch, Dublin.106 St Attracta Road, Cabra, or having any solicitor holding Would by theknowledge of a will made died onabove-named deceased, who RT 17 March 2008, please contact: 3 ChanceryRingrose & Co, Solicitors, 677 7495,Place, Dublin 7; tel: 01 email: [email protected] (deceased), Brigid Lynskey, of Ballinamana, Clarenbridge, Co formerly of 46 Westfield and Galway, London N15 Road, South Tottenham, any person 5LD, England. Would having knowledge of a will made by the above-named deceased, who died on 27 February 2008, please contact Emerson and Conway Solicitors, 1 St Francis Street, Galway; tel: 091 562 531, email: [email protected] McGrath, James (orse Jimmy) (deceased), Kenagh, Longford, retired army unmarried, who died 13 officer, Care August 2008 at St Joseph’s any person Centre, Longford. Would having knowledge of a will made by the aforementioned deceased please contact Thomas K Madden & Co, Longford; Solicitors, 1 Camlin View, tel: 043 41192, fax: 043 41561 Madden, John Patrick (deceased), Villas, late of 59 Woodford Clondalkin, Dublin 22, and 17 St Dublin, who Raheny, Avenues, Anne’s died on 9 November 2008. Would any person having knowledge of the whereabouts of any will made by John Patrick Madden please contact O’Brien Ronayne, Solicitors, 5A Main Dublin 24; tel: 01 424 Road, Tallaght, 6200, fax: 01 424 6201 Mary Catherine (de- Murphy, ceased), Sallynoggin, Co Dublin, who died 9 July 2007 in Earlsbrook Nursing Co Home, 41 Meath Road, Bray, any person having Would Wicklow. any knowledge of a will made by the above-named person please contact & Co, Solicitors, Elizabeth Ward Clifton House, Lower Fitzwilliam Street, Dublin 2; tel: 01 661 3788, fax: 01 230 3855 O’Brien (Bryan), William (deceased), any Would Johnstown, Co Kilkenny. solicitor holding or having knowledge of a will made by the above-named
late died in late of 53 late of late of 11 late of Rose Daly (née 32 The Fairways, Abbeyleix, in the any person county of Laois. Would having knowledge of a will executed by the above-named deceased, who died on 4 January 2009, please contact James E Cahill and Company, Solicitors, Market Square, Abbeyleix, Co Laois; tel: 057 873 1246/873 1220, fax: 057 873 1480, email: lmbjecahill@ eircom.net Harrington, Nora (deceased) Barton Road East, Churchtown, in the of 4 Sheephill Green, Blanchardstown, having any person Dublin 15. Would by theknowledge of a will executed died onabove-named deceased, who contact27 December 2008, please Company, Plunkett Kirwan & Killester, Solicitors, 175 Howth Road, Dublin 3; tel: 01 833 8254, fax: 01 833 8259, email: Linda.ocallaghan@ plunkett-kirwan.com (deceased), Dee, Walter (retired shop assistant), late of Bank Place, Castletownbere, Co Cork. any person having knowledge Would of a will made by the above-named deceased, who died on 29 June 2007, please contact Mary Dorgan, solicitor, of 96 South Mall, Cork; tel: 021 427 6556 Henry (deceased), Hehir, Sixmilebridge, Co Clare. Church View, any person having knowledge Would of the whereabouts of any will made by the above-named deceased, who died on 15 January 2006, please contact Bowen & Co Solicitors, Pound Street, Sixmilebridge, Co Clare; tel: 061 713 767, fax: 061 713 642, email: gwen@ legalsupportservices.ie Peter (deceased), Kearney, England on 26 August 1960, formerly of Coopers Cross, Castlebellingham, Co Louth, and Coopers Cross, Castlebellingham, any person know Co Louth. Would the whereabouts of any next of kin of the late Peter Kearney and Rose of Coopers late née Kearney, Daly, Cross, Castlebellingham, Co Louth, please contact Catherine Allison & Company of 6 Roden Place, Dundalk, Co Louth; tel: 042 932 0854, fax: 042 932 0855, email: [email protected] Kinane, Patrick (deceased), Would any solicitor holding or having any solicitor Would a will made by theknowledge of died onabove-named deceased, who contact:15 September 2008, please Flanagan,Bolger White Egan & Portlaoise,Solicitors, 8 Limard Court, email:Co Laois; tel: 057 862 1468, [email protected] Cunningham, Eric (deceased), Kearney) (deceased),
late late of late of JAN/FEB 2009 JAN/FEB Co Wexford Co Wexford Co Wexford Co Wicklow Co Wexford Co Wexford of Forth; of Forth; folio: 1884F;Margaret Griffiths; and barony oflands: Ballybro Forth; folio: 3636F; lands: Ballaghablakefolio: 3636F; and barony ofand Ballinamorragh Shelmaliere East; ed); folio: 19573; lands: Nemestown and barony of Bargy; barony1260; lands: Ballygoman and of Shelmaliere West; Desmond Lewis and David Adams,Desmond Lewis and David Shankill,of 40 Corbawn Drive, Co Dublin; folio: WW16660F; lands: townland of Kilruddery of in the barony Demesne West divisionRathdown in the electoral of Kilmacanoge; Christine O’Neill (veterinary assistant), of 6 The Pines, Herbert folio: Co Wicklow; Road, Bray, 13194F; lands: the south of Boghall Road in the urban district of Bray, being part of the townland of Oldcourt and barony of Rathdown; Co Wicklow WILLS www.lawsocietygazette.ie Ballycarroll, Portlaoise, Co Laois. Baltrasna, Ratoath Road, Ashbourne, Co Meath, who died on 1 October any person having 2007. Would knowledge of a will made by the above-named deceased please contact & Co, Solicitors, New Patrick Tallan Centre, Ashbourne, Co Meath; Town tel: 01 835 2027, fax: 01 835 2029, email: [email protected]; ref: 3272/0001 Clarke, Margaret (deceased), Square North, Tone of 31 Wolfe any person Would Co Wicklow. Bray, having knowledge of a will made by the above-named deceased, who died on 23 February 1998, please contact Maguire McNeice & Co, Solicitors, Co Bray House, 2 Main Street, Bray, tel: 01 2862 399, fax: 01 Wicklow; 2829 428 Christina (deceased), Columby, late of Newtown, Killaloe, Co Clare. any person having knowledge Would of a will made by the above-named deceased, who died on 11 November 2007, please contact Culhane Judge & Co, Solicitors, The Square, Newcastlewest, Co Limerick; tel: 069 62969, fax: 069 62396 Condon, Mark (deceased), Barry, James (deceased), James Barry, LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW Regd owner: John Daid E Griffiths,Regd owner: Regd owner: Martin Thomas Murphy;Regd owner: Doyle (deceas- Regd owner: William folio:Regd owner: Maura Mahon; Regd owner: Geoffry Lewis,Regd owner: Geoffry Regd owner: David O’Neill and
BRIEFINGPROFESSIONAL NOTICES 66 and the and in the Landlord andLandlord 67
BRIEFINGPROFESSIONAL: an application by NOTICES Landlord and Tenant and Tenant Landlord Tenant Acts 1967-2005 Tenant matter of the (Ground Rents) Act 1967 (Ground Rents) and Tenant Landlord (No 2) Act 1978 Dublin City Council and in the matter of the properties at 51 and 52 Lower Sean McDermott Street in the city of Dublin notice that any person having Take an interest in the freehold estate or any intermediate interests in the properties now known as 51 and 52 Lower Sean Mc Dermott Street in the city of Dublin and described in the indentures of lease (details of which are set out below) as “all that and those that plot or parcel of ground situate on the west side of Buckingham Street next adjoining to and on the north side of Lower Gloucester Street in the parish of Saint Thomas and county of the city of Dublin containing in front to Buckingham Street one hundred and twelve feet of building ground the same number of feet in the rear and extending in depth from Buckingham Street to the flank wall of the houses and premises called Gloucester together with the free use of a Terrace lane to be laid out fifteen feet wide at the least from the north west angle of said demised premises to the opening or street called Belle Street”. Lease dated 12 June 1843 made between Parsons Hoey of the one William Kenny of the other part and William part, subject to the yearly rent of one pound three shillings and four pence sterling. Lease dated 12 June 1843 of the made between Anthony Lyster Kenny of the one part and William other part, subject to the yearly rent of one peppercorn, if demanded, for the first three years and thereafter three pounds, ten shillings. Lease dated 12 June 1843 made between Lancelot Fisher of the first part, of the second part Laurence Walker Kenny of the third part, and William subject to the rent of £10 sterling. Lease dated 12 June 1843 made between Elfrida Lady Neville of the of the second first part, Higott Tench Kenny of the third part and William part, subject to the yearly rent of one peppercorn, if demanded, for the first three years and thereafter one pound, three shillings and four pence sterling. All of said leases demised for a term of 500 years from 1 May 1843. interest including the freeholdinterest including the arereversion in the aforesaid property unknown or unascertained. Date: 6 February 2009 CompanySigned: James Bourke & applicants),Solicitors (solicitors for the Dublin165 Roselawn Road, Castleknock, 15 In the matter of the JAN/FEB 2009 JAN/FEB www.lawsocietygazette.ie and in the and in the Landlord andLandlord Landlord and Tenant and Tenant Landlord LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW In default of any such notice beingIn default of any such notice notice that the applicants, Take In default of any such notice being called upon to furnish evidence of thecalled upon to furnish evidence to thetitle to the aforesaid premises from thebelow named within 21 days date of this notice. Holdingsreceived, Michael Murphy with theLimited intends to proceed registrarapplication before the county the date ofat the end of 21 days from the countythis notice and will apply to for Wexford registrar for the county of ondirections as may be appropriate beneficiallythe basis that the persons interestentitled to the superior including the freehold reversion in the aforesaid premises are unknown and unascertained. Date: 6 February 2009 Solicitors, 1-3Signed: Reidy Stafford Newbridge, Co Terrace, Moorefield Kildare In the matter of the Acts 1967-2005 Tenant matter of the (Ground Rents) Act 1967 matter of an application by Terence Bennett and Peter Lawless and in the matter of 60a Bolton Street, Dublin 7 notice that any person having an Take interest in the freehold estate or any other superior interest or intermediate interest in the following property: 60A Bolton Street in the parish of St Mary in the city of Dublin, being part of the premises demised by an indenture of lease dated 10 July 1917, Stewart Collis made between William of the one part and Emily Falkner of the other part, subject to the yearly rent of £25 and to the covenants and conditions therein contained. Bennett and Peter Lawless, Terence intend to submit an application to the county registrar for the county and city of Dublin at Áras Uí Dhálaigh, Inns Dublin 7, for the acquisition of Quay, the freehold interest in the property and all the intermediate interests in and any party or parties the property, asserting that they hold a superior interest or intermediate interest including the freehold reversion in the aforesaid property are called upon to furnish evidence of title to the below named within 21 days of the date of this notice. and Peter Bennett received, Terence Lawless intend to proceed with the application before the county registrar on the expiry of 21 days from the date hereof, and will apply to the county registrar for the county and city of Dublin for directions as may be appropriate on the basis that to have the question of whether they are entitled to acquire the free simple and all the persons beneficially entitled to the superior interest or intermediate and and in the Landlord andLandlord Landlord and Tenant and Tenant Landlord Take notice that Michael Murphy Take Take notice that Louis BD notice that Louis Take In default of any such notice Tenant Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of in application by Michael Murphy Holdings Limited notice that any person having Take any interest in the freehold estate of the following property: all that and those the premises known as 20 New Ross, in the county The Quay, formerly used as bank of Wexford, offices, being the lands originally demised by a lease dated 1 April 1789 and made between Thomas Jones of the one part and Philip Hay of the other part, from 1 November 1788 for a term of 999 years at a yearly rent of two pounds, five shillings and six pence (old currency) and subject to the covenants, agreements and conditions therein contained. Holdings Limited intends to submit an application to the county registrar for for the county of Wexford acquisition of the freehold interest in the aforesaid premises, and any party asserting that they hold a superior interest in the aforesaid premises are Co Tipperary: an application by Co Tipperary: Michael VLouis BD Courtney and O’Mahony person having notice that any Take or anan interest in the freehold aforesaidintermediate interest in the which was demised by lease property, betweendated 22 October 1881 made of the one Holmes Bassett William the otherpart and Mary Charles of from 25part for a term of 99 years of fourMarch 1881 at a yearly rent covenantspounds, and subject to the and conditions therein contained. Courtney and Michael V O’Mahony, as personal representatives of the late intend to submit an AD Courtney, application to the registrar of titles for acquisition of the freehold and any intermediate interest in the aforesaid any party asserting that and property, they hold an interest in the aforesaid property are called upon to furnish evidence of title to the aforesaid property to the below named within 21 days of the date of this notice. being received, the applicants intend to proceed with the application before the registrar of titles at the end of 21 days from the date of this notice and will apply for directions as may be appropriate on the basis that the persons beneficially entitled to any superior interest in the aforesaid property are unknown or unascertained. Date: 6 February 2009 Signed: Arthur Cox, Earlsfort Centre, 2 Dublin Earlsfort Terrace, In the matter of the
in box box Over West- Landlord , as amended, and Contact Eamonn Gre- arises to extend your or mobile: 086 253 0244 or mobile: 086 and in the matter of the 450,000. Please reply to 450,000. Please € Contact Stephen Ahern, tel: 01 TITLE DEEDS and Tenant (Ground Rents) Acts and Tenant 1967-1994 (Ground Rents) and Tenant Landlord (No 2) Act 1978 in the matter of 31 Kenyon Street (formerly Barrack Street), Nenagh, In the matter of the Lost title deeds – Whelan, of 100 Christopher and Veronica, Barton Road East, Dublin 14. Property at 100 Barton Road East, Dublin 14, barony of Rathdown and county of Dublin. Anybody with information regarding the whereabouts of the title documents relating to the above purchased by Christopher property, Whelan (now deceased) and now Whelan, vested in his widow Veronica on or about November 1990, please contact Moran Solicitors, 2 Westland Square, Dublin 2 (DX 185 Dublin) no 0109/02 Solicitors – a rare and unusual opportunity Ordinary seven-day on-licence for sale. 661 6102 practice into the thriving area of professional legal costs drawing. An experienced, long-practising legal costs accountant has a proposal available, no purchase expenditure required; would suit legal firm with Principals only to excess capacity. Seven-day intoxicating liquor lic- ence for sale. Solicitors, 19 Clan- ene & Company, william Square, Dublin 2; tel: 01 678 0020 or email: [email protected]. Dun Laoghaire area on flexibleDun Laoghaire area facilitiesterms. Possible serviced Suitconsidered. Car parking optional. Mauriceprofessional person. Contact or emailO’Callaghan; tel: 01 280 3399 [email protected] Plush office for sale or rent. for sale office Plush space available Shared office main door of Arthur Quay Shoppingmain door of centre of Limerick.Centre, at the 3 solicitors. Knock-outIdeal for 2 to price: Specialisingside Bookkeeping Services. accounts/ in all aspects of solicitors’ bookkeeperpayroll. Experienced basis – onavailable on a contract available.site. Excellent references at 087 293Contact: Michelle Ridge 0347, email: [email protected] Reduce your overheads – outsourceReduce your your bookkeeping/accounts. no 0109/03 : an and in the Landlord andLandlord Landlord and Tenant and Tenant Landlord Take notice that Croke Park Take In default of any such notice being Tenant Acts 1967-2005 Tenant matter of the 1978 (Ground Rents) (No 2) Act Motorsapplication by Croke Park Limited having an notice that any person Take in theinterest in the freehold estate and thosefollowing property: all that nowthe hereditaments and premises Dublin 3,known as 28A Jones Road, of leaseand demised by an indenture betweendated 14 December 1883 McAuley ofPeter Leech and Thomas of thethe first part, Samuel Sherlock second part and John Moore Flood of the third part, and therein described as “all that and those the piece or plot of ground situate on the west side of Jones Road containing in front to said road fifty eight feet in breadth in rere sixty two feet six inches and in depth from front to rere on the north side thereof seventy five feet six inches and on the south side thereof seventy three feet three inches be all the said several admeasurements more or less bounded on on the north by Russell Avenue the south by the Mill premises of and Company on the Andrew Todd east by Jones Road and on the west by a back lane or passage and are situate in the parish of Saint George Barony of Coolock and county of Dublin”, held for a term of 220 years from 1 September 1882, yielding and paying the yearly rent of £13. Motors Limited intends to submit an application to the county registrar for the county of the city of Dublin for the acquisition of the fee simple interest in and any party the aforesaid property, asserting that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the aforementioned property to the below named within 21 days from the date of this notice. received, the applicant, Croke Park Motors Limited, intends to proceed with the application before the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the county of the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 6 February 2009 the freehold in the aforesaid propertythe freehold and unascertained. are unknown Date: 6 February 2009 (law agent O’Keeffe Signed: Terence the applicant), Dublinand solicitor for Quay, Civic Offices, Wood City Council, Dublin 8 In the matter of the Take notice that the applicant, Take In default of any such notice being school at School Street in the parishschool at School and city of Dublin,of St Catherine under fee farm grant partially held 1937, made dated 30 November Knox of the one between Gertrude Minister for Education part and the part, subject to the of the other rent of 21 pounds, yearly fee farm forever and 12 shillings and 3 pence, and those therein described as all that yard the said north side of Crilly’s the county situate, lying and being in (save of the city of Dublin aforesaid of ground and except the said piece the upper enclosed with walls at together end thereof next Belview) and other with all houses, buildings and made improvements erected members, thereon, with the rights, hereditaments and appurtenances any wise thereunto belonging or in are now appertaining “but which Model Dublin known as the West National School situate in the of Ushers electoral division or Ward Quay in the parish of St Catherine and county of the city of Dublin’’ and partially held under indenture of lease dated 25 September 1873 made between the Right Honourable Earl of Meath of the one part William and Sir Arthur Edward Guinness and Edward Cecil Guinness of the other part for a term of 200 years from 25 March 1873, subject to the yearly rent of £60 and to the covenants on the part of the lessee and conditions the rein contained in a deed of conveyance dated 10 February 1941 as being part of the premises described as “all that parcel of ground in the manor of Thomas Court and Donore being map of number 115 on Armstrong’s the Meath Estate situate in the parish of St Catherine and city of Dublin’’. Dublin City Council, intends to submit an application to the county registrar for the county/city of Dublin for the acquisition of the freehold interest and all intermediary interests and any in the aforesaid property, party ascertaining that they hold a superior interest or any intermediary interests including the freehold reversion in the aforesaid property is called upon to furnish evidence of title to the aforesaid properties to the below named within 21 days of this notice. received, the applicant, Dublin City Council, intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county/ city of Dublin for such directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest and any intermediary interests including
: an and in the and in the Landlord andLandlord andLandlord Landlord and Tenant and Tenant Landlord and Tenant Landlord Take notice that Threshold Limited Take In default of any such notice being operative Society Limited, being theoperative Society the lessees in the abovesuccessors of person entitled underlease, being the sections of the aforesaidthe relevant to purchase the feeacts, proposes and all intermediatesimple interest the lands described ininterests in herein being the personparagraph 1, interest in now entitled to the lessee’s the said mentioned lease. Date: 6 February 2009 Signed: Ronan Daly Jermyn (solicitors for Cork the applicant), 12 South Mall, In the matter of the Tenant Acts 1967-2005 Tenant Act 1978 (Ground Rents) (No 2) applicationand in the matter of an in theto acquire the fee simple premises known as 21 Stoneybatter, of St PaulDublin 7, in the parish made byand in the city of Dublin, Threshold Limited notice that any person having any Take interest in the freehold estate of the following property: 21 Stoneybatter, Dublin 7, in the parish of St Paul and in the city of Dublin. intends to submit an application to the county registrar for the county/city of Dublin for acquisition of the freehold interest in the aforesaid properties, and any party asserting that they hold a superior interest in the aforesaid premises (or any of them) are called upon to furnish evidence of the title to the aforementioned premises to the below named within 21 days from the date of this notice. received, Threshold Limited intends to proceed with the application before the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the county/city of Dublin for directions as may be appropriate on the basis that the persons beneficially entitled to the superior interest including the freehold reversion in each of the aforesaid premises are unknown or unascertained. Date: 6 February 2009 Signed: O’Sullivan O’Dowd (solicitors for the applicant), 1 Blackhall Rise, Blackhall Place, Dublin 7 In the matter of the Acts 1967-2005 Tenant (Ground Rents) (No 2) Act 1978 application by Dublin City Council. And in the matter of the former national school at School Street in the parish of St Catherine in the city of Dublin notice that any person having an Take interest in the freehold estate or any intermediary interest in the property now known as the former national matter of the matter of the all JAN/FEB 2009 JAN/FEB None.
: notice of Landlord andLandlord Landlord and Tenant and Tenant Landlord held under indenture of lease
and the Take notice that the Dairygold Co- Take Particulars of applicant’s lease or Particulars of applicant’s Part of the lands excluded: In default of any such notice beingIn default of any such notice Take notice that the applicant,notice that Take www.lawsocietygazette.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW intention to acquire fee simple. To: intention to acquire fee simple. To: successors in title of Waterford, Railway Limerick and Western Company/Coras Iompair Éireann andDescription of lands, hereditaments to which this notice refers: premises tenancy: received, the applicant, Dublin Cityreceived, the applicant, Dublin with theCouncil, intends to proceed registrarapplication before the county the date ofat the end of 21 days from the countythis notice and will apply to of Dublinregistrar for the county/city appropriatefor directions as may be or personson the basis that the person beneficially entitled to the superior interest and any intermediary interests including the freehold reversion in the aforesaid properties are unknown and unascertained. Date: 6 February 2009 O’Keeffe (law agent Signed: Terence and solicitor for the applicant), Dublin Quay, City Council, Civic Offices, Wood Dublin 8 In the matter of the (No 2) Act Ground Rents Tenant 1978 Amendment Act 1984 that plot or parcel of land part of the townland of Ballina, containing 40 perches or thereabouts, and more particularly described on a map attached to a lease of 18 April 1900 and made between the Waterford, Railway Limerick and Western Company of the one part and the Condensed Milk Company of Ireland Limited of the other part. dated 18 April 1900 and made between Limerick and Western the Waterford, Railway Company of the one part and the Condensed Milk Company of Ireland Limited of the other part for the term of 31 years at the yearly rent of one shilling. And by a supplemental deed of 14 December 1928 and made between the Great Southern Railways Company of the one part, the Dairy Disposal Company Limited of the other part for a further term of 21 years from 1 April 1931 at a yearly rent of one shilling. Dublin City Council, intends toDublin City to the countysubmit an application county of Dublin forregistrar in the of the freehold interestthe acquisition properties (or eitherin the aforesaid any party ascertainingof them), and a superior interest orthat they hold includingany intermediary interests aforesaidthe freehold reversion in the is calledproperties (or either of them) of title toupon to furnish evidence the belowthe aforesaid properties to notice.named within 21 days of this
BRIEFINGPROFESSIONAL NOTICES 68 69
BRIEFINGPROFESSIONAL NOTICES .
Employment In default of any such noticeIn default of any such aforesaid properties, and any partyaforesaid properties, and a superiorasserting that they hold orinterest in the aforesaid properties to furnishany of them is called upon evidence of title to the aforementioned withinproperties to the below named notice.21 days from the date of this Paircbeing received, the applicant, intends to an Chrocaigh Teoranta, beforeproceed with the application the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the county of the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 6 February 2009 & McKnight, Charlton Signed: Reddy, 12 Fitzwilliam Place, Dublin 2 box no 0109/04 JAN/FEB 2009 JAN/FEB cation experience (PQE) for all their legal www.lawsocietygazette.ie RECRUITMENT Part-time locum solicitor required to cover office in Longford for four months commencing in April 2009 – 30 hours per week approximately. General practice experience essential. All applications to . 2004 NO recruitment advertisementspublished will be , not just qualified solicitors. LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW , EMPLOYMENT and Take notice that Pairc an Take Gazette
Editorial Boardthis decision based on legal advice, has taken those that the several lots or parcels those that the several lots South Side of ground situate on the parish of of Clonliffe Road in the of Dublin Saint George and county 1 rood containing altogether 21 acres measure as and 12 perches Statute possession the same are now in the John Kelly, and occupation of John Michael Henry O’Grady, Walsh, assignees Donnelly Junior and and of McClenahan of William Thomas Cullinane of whom the said Maurice Butterly is undertenant and the several Boundaries of which are particularly mentioned and described in the Map on the margin hereof together with the rights members and appurtenances to the same belonging or in anywise appertaining in as full and ample a manner as the same are held by the several parties above mentioned and subject to their existing tenancies therein and as the same are more fully delineated and described in the said map or terchart in the margin hereof excepting nevertheless all mines and minerals in upon or under the lands and premises hereby demised”. intends to submit Chrocaigh Teoranta an application to the county registrar for the county of the city of Dublin for the acquisition of the freehold interest and any intermediate interests in the NOTICE TO THOSE PLACING RECRUITMENT THOSE PLACING NOTICE TO Gazette and Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, or contact Trina Murphy, recruitment administrator, at the Law Society’s Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members to advertise ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE ADVERTISEMENTS LAW IN THE FREE Please note that, as and fromPlease note 2006 issue of the the August/September Law Society that include referencesthat include of post-qualifi to years Equality Acts 1998 The referenceswhich indicates that such may be in breach of the RECRUITMENT REGISTER and in the
Landlord andLandlord locum Landlord and Tenant and Tenant Landlord staff requirements In default of any such noticeIn default of they hold a superior interest in thethey hold a property are calledaforementioned evidence of title to theupon to furnish below named withinproperty to the the date hereof.21 days from the applicant, Jarmarbeing received, intends to proceedProperties Limited, the countywith the application before days fromregistrar at the end of 21 will applythe date of this notice and the countyto the county registrar for asof the city of Dublin for directions basis thatmay be appropriate on the beneficiallythe person or persons interestentitled to the superior inincluding the freehold reversion arethe aforementioned property unknown or unascertained. Date: 6 February 2009 O’Reilly & Signed: Cathal N Young, 39 FleetCo (solicitors for the applicant), Dublin 2 Street, In the matter of the Tenant Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of premises at 27, 27A, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69 Jones Road, Dublin 3: an application by Pairc an Chrocaigh Teoranta notice that any person having Take an interest in the freehold estate or any superior interest in the properties formerly known as numbers 27, 27A, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69 Jones Road, held under indenture of lease dated 16 April 1864 and made between Robert Fowler of the one part and Maurice Butterly of the other part for a term of 500 years from 1 May 1863 and therein described as “all that and and LOCUM and in the Landlord andLandlord Landlord and Tenant and Tenant Landlord or seeking to employ a locum solicitor.
Take notice that the applicant, Take
For Law Society members seeking a position as a Log onto the new self-maintained locum recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, or contact Trina Murphy, recruitment administrator, at the Law Society’s Cork office, tel: 021 422 6203 or email: [email protected] FREE
RECRUITMENT REGISTER in the matter of an application byin the matter Limited Jarmar Properties having notice that any person Take estate inany interest in the freehold 154A andthe following property: Dublin,156 Upper Sheriff Street, inand more particularly described 25 Aprilthe indenture of lease dated of the1978 between Richard Martin ofone part and James McDonnell called ‘thethe other part (hereinafter that piecelease’) as all that and those Lottsof ground being part of North St Thomasand situate in the parish of of Dublinand the county of the city on theand as more particularly shown the marginmap or terchart thereof in of these presents, which said piece or parcel of ground contains in the front thereof to Sheriff Street 30ft and in the rear 30ft and from front to rear 85ft, bounded on the north by Sheriff Street and on the south by land in the possession of the said Richard Martin, and on the east by land in the possession of James Flood, and on the be the holding, west by Isaac Beckett’s said admeasurements more or less and held under the lease for a term of 200 years from 1 April 1878 and subject to the yearly rent of £30 and to the covenants and conditions on the part of the lessee therein contained. Jarmar Properties Limited, intends to submit an application to the county registrar for the county of the city of Dublin for acquisition of the freehold interest and all superior interests in the aforementioned any party asserting that and property, Tenant Acts 1967-2005 Acts Tenant matter of the (No 2) Act 1978 (Ground Rents) Signed: Reddy, Charlton & McKnight, Charlton Reddy, Signed: Place, Dublin 2 12 Fitzwilliam of the In the matter solicitor LAW SOCIETY GAZETTE JAN/FEB 2009 RECRUITMENT
Rugby lunch at the Law Society
Members are invited to a buffet lunch at the Law Society, Blackhall Place, on 28 February 2009 on the occasion of the home Six Nations rugby match against England.
Tickets at €25 each, in aid of the Solicitors Benevolent Fund, can be obtained from Maria Hoey and can be ordered by post or by email to [email protected]. Tickets will entitle members to a buffet lunch, glass of wine and shuttle bus to Croke Park. Numbers are limited to 100 and will be provided on a ‘first come, first served’ basis.
70 www.lawsocietygazette.ie
Mako Search, T: 01 631 9126 Alexandra House, F: 01 631 9001 The Sweepstakes, E: [email protected] Ballsbridge, Dublin 4. W: www.makosearch.ie
OPPORTUNITIES IN DUBLIN
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FUNDS 130k+Bonus+Benefits DEBT RECOVERY 90k+Bonus+Benefits Our client is a leading firm and is now actively seeking to Our client is seeking a lawyer with excellent debt recovery recruit a funds senior associate. Joining a core group of experience. This role involves running your own caseload of specialists and drawing on the expertise of other practices, litigated matters from the taking of initial instructions, you will provide comprehensive multi-jurisdictional advice issuing and running court proceedings, through to the enforcement of judgements, in particular bankruptcy and on a wide variety of onshore and offshore funds and related winding up petitions. You will also assist the partners within incentive schemes, from initial structuring through to the insolvency department while promoting the business. closing and winding-up. Our client is looking for someone This is an ideal position for a lawyer with previous debt who has an awareness of legal, regulatory, tax and commercial recovery experience looking to take their career to the next issues. You will have excellent academics and must have stage. Excellent terms and benefits on offer with this trained in a leading firm in the UK or Ireland. Ref S1196 position. Ref S1199
CORPORATE PARTNER 140k+Bonus IN-HOUSE CAPITAL MARKETS Negotiable Are you looking for a leading firm that is going places? This You will identify and analyse legal structures and firm is prudently ambitious and is well placed to buck the documentation issues relating to treasury products. You current market trend by growing and further developing will negotiate and draft individual deal confirmations and structured hedging arrangements with GT counterparties for over the next few years. The firm is offering an outstanding a wide range of structured products including inflation career development opportunity - the chance to develop derivatives, structured FX options, exotic options, and manage their corporate practice. As an experienced cancellable swaps, NDF transactions and structured corporate lawyer with a proven skill for client management notes etc. The ideal candidate will come from a banking/ and business development you will be given full autonomy regulatory background, have become a specialist in to develop your own reputation in the market alongside the legal derivatives market and have very strong securing the reputation of the team as a whole. Ref S1195 academics. Ref S1197
HAVE YOU CONSIDERED OPPORTUNITIES IN THE MIDDLE EAST? MAKO Search is currently working with leading law firms and in-house organisations throughout the Middle East & Asia. Our clients urgently require lawyers for the following areas:
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For opportunities in Ireland or overseas, please contact [email protected] or [email protected] Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting www.benasso.com new opportunities and keeping an open mind
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Top Opportunities
Commercial Lawyer - Senior Associate to Partner level €Neg J00387 Our client is a well established and highly respected Dublin law firm. An excellent opportunity has arisen for an ambitious commercial lawyer to join the firm. The successful candidate will have a broad range of commercial/corporate experience and demonstrate strong business acumen.
Commercial Litigator - Associate to Senior Associate Level €Neg J00398 A leading Dublin practice is searching for a first rate Litigation specialist with excellent post- qualification experience. The successful candidate will be dealing with a broad range of contentious matters and must exhibit sound commercial judgement coupled with strong technical and client facing skills.
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For more information on these or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] COMMERCIAL PARTNER Is your Dublin | €Negotiable | Ref: 21984 A growing mid-size firm require a Partner to grow and develop their Commercial Department. The successful candidate will have strong business development skills and have a proven background in Commercial law. You will be required to show a genuine business case, both in terms of your strong aptitude for business development and ideally a following of clients. ideal role ‘Best Legal Recruiter’ FINANCIAL REGULATION ASSOCIATE here? London | €Negotiable | Ref: 20223 The financial regulation practice of this leading firm acts for a broad range of clients and handles a variety of types of work across the regulatory field. They advise on the supervision of investment banks, building societies, insurance companies, brokers, asset managers, exchanges, banks and clearing houses. They are closely involved with their clients and the continuing consultation process surrounding the UK and European regulatory regimes. Experience from a leading firm with excellent academics essential.
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